Kalinowski v. Viermann

• Decision Date: 08 April 1919
• Docket Number: No. 15279.,15279.
• Citation: 211 S.W. 723
• Parties: KALINOWSKI v. VIERMANN.
• Court: Missouri Court of Appeals

211 S.W. 723

KALINOWSKI v. VIERMANN.

No. 15279.

St. Louis Court of Appeals. Missouri.

April 8, 1919.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by Anna Kalinowski against August Viermann. From judgment for plaintiff defendant appeals. Reversed.

Wm. F. Woermer and Emerson E. Schnepp, both of St. Louis, for appellant.

Edward W. Foristel and J. B. Garber, both of St. Louis, for respondent.

BUCKER, J.

Plaintiff, the mother and only surviving parent of Michael Kalinowski, deceased, aged 19 years at the time of his death, sued to recover damages for his death, which she alleged was caused by the negligence of the defendant's son while operating an automobile owned by the defendant. From a judgment in the sum of $500 in favor of plaintiff and against the defendant, this appeal is brought.

It is not necessary to set out the pleadings, it being sufficient to state that the case went to the jury upon the last chance doctrine alone. The other assignments of negligence, not having been substantiated, were withdrawn from the consideration of the jury.

It appears that Michael Kalinowski was 19 years and 2 months old when, on the 19th day of June, 1915, he died as the result of a collision between himself, while riding a bicycle, and an automobile driven by the son of the defendant; the collision occurring at the intersection of Osceola street and Nebraska avenue in St. Louis. Michael was riding his bicycle to work, east on Osceola street near its intersection with Nebraska avenue, down a considerable grade, and at a rate of perhaps 15 or 18 miles per hour, when, as he approached the intersection of Nebraska avenue with Osceola street, a Ford automobile, driven south along Nebraska avenue, crossed Osceola street, and Michael, in order to avoid striking the Ford car, when about on a line with the west curb of Nebraska avenue, and about in the center of Osceola street, made a sharp turn north into Nebraska avenue, and narrowly avoided striking the rear of the said Ford car. The driver of the Ford car had seen the rapid approach of Michael on his bicycle and had increased his speed somewhat to avoid a collision. Michael proceeded north on Nebraska avenue at a distance of perhaps 12 feet from the west curb thereof, when he ran headlong into the bumper of another automobile driven by the son of the defendant; said automobile being driven south along Nebraska avenue just west of the center line of said street. When the automobile came to a stop, having gone some 3 or 4 feet after the impact of the bicycle with the bumper, Michael was hanging over the bumper, and, though he was not run over by the automobile, had suffered such injuries, however, that they resulted in his death.

It appears that the lot on the northwest corner of Osceola street and Nebraska avenue is fenced in with a stone fence 7 feet high along Osceola street and 4½ feet high along Nebraska avenue, so that the view between these two streets as thereby obstructed.

According to the testimony of defendant's son, called as a witness for the plaintiff, he was driving the automobile south along Nebraska avenue with the east wheels of the machine a few feet west of the center line of said street, and proceeding at the rate of 8 miles per hour, and was perhaps 50 feet behind a Ford car, and when his car was about 15 feet north of the north curb line of Osceola street, he saw the boy Michael about 25 or 30 feet away, just north of the center line of Osceola street and about on the line of the west curb of Nebraska avenue, pedaling his bicycle north at the rate of 15 or 18 miles per hour. He...