Kelly v. Rieth

• Decision Date: 02 February 1943
• Docket Number: No. 26202.,26202.
• Citation: 168 S.W.2d 115
• Parties: KELLY v. RIETH.
• Court: Missouri Court of Appeals

168 S.W.2d 115

KELLY v. RIETH.

No. 26202.

St. Louis Court of Appeals. Missouri.

February 2, 1943.

Rehearing Denied February 19, 1943.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Mary Kelly against Albert Rieth, doing business as the Rieth Truck Service, to recover for injuries allegedly sustained by plaintiff when defendant's agent and servant backed defendant's automobile truck over the plaintiff. From a judgment in favor of the defendant, the plaintiff appeals.

Judgment affirmed.

Francis M. O'Brien and Theodore C. Eggers, both of St. Louis, for appellant.

Thomas J. Cole, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was instituted by appellant, as plaintiff, against respondent, as defendant, to recover damages for personal injuries alleged to have been sustained by plaintiff on December 19, 1940. A trial before the court and a jury resulted in a verdict and judgment in favor of defendant. Plaintiff duly appealed.

In her petition plaintiff alleged that on December 19, 1940, between 5 and 6 p. m., while she was crossing Ninth Street at its intersection with Montgomery Street in the City of St. Louis, defendant's agent and servant drove defendant's automobile truck backward and southwardly on the east side of Ninth Street and ran the same upon and over plaintiff; that at the time plaintiff was unaware of the approach of said truck; and that defendant's servant backed it upon and over plaintiff, knocking her down on the street and seriously injuring her.

Plaintiff averred that her injuries were directly and proximately caused by the negligence of defendant in the following respects: (1) failure to give warning by horn or otherwise of the approach of defendant's automobile truck; (2) failure to keep a vigilant watch ahead or laterally for pedestrians walking upon the traveled part of the street at the point aforesaid; (3) negligence, under the humanitarian rule, by failure to stop said truck or slacken the speed thereof, or to swerve the same, or to sound a warning of the approach thereof.

Plaintiff's petition alleged that, as a direct result of defendant's negligence, she suffered injuries, some of which were alleged to be permanent. She prayed judgment against defendant in the sum of $7,500.

The answer of defendant was a general denial of the allegations of plaintiff's petition, coupled with an allegation that "whatever injuries, if any, the plaintiff received, were due to her own negligence and carelessness directly contributing thereto."

The evidence shows that plaintiff was a married woman sixty-five years of age; that she had been engaged in the business of selling horseradish and pickles for fourteen years; that she sold from house to house almost every day, carrying on her business in Kirkwood, Webster, Illinois, and other places; that she worked thus from 8 in the morning to as late as 7 in the evening.

Plaintiff testified that on December 19, 1940, she had gone into the tavern known as Feldkemp's Hotel on the northeast corner of Ninth and Montgomery Streets, both public streets in the City of St. Louis, and had left that place carrying, in a pitcher, some beer which she had bought there; that she was on her way to her home, which was about a block and a half from the tavern, when she stopped at the curb on the east side of Ninth Street and noticed defendant's truck parked near the east curb in Ninth Street, facing north; that it was about ten feet north of the north crossing over Ninth Street at the intersection of said streets; that no one was in charge of the truck at that time; that the motor of the truck was not running, and that no lights were then on it; that she looked to the north, then to the south while she stood there about three feet from the curb waiting for traffic approaching in Ninth Street from the south to pass; that as she was about to start across Ninth Street to the west, defendant's truck, in control of Floyd Brooks, defendant's servant, backed southwardly upon her and knocked her to the street as a result of which she was injured.

Plaintiff testified that after she was struck by the truck the driver thereof came back to her and said he was sorry and told her that he would see that she got some more beer; that she walked over to defendant's garage, on the southeast corner of Ninth and Montgomery Streets, with the driver and thereafter they walked back to the tavern where the driver bought beer for her to replace that which had been spilled from her pitcher; that while they were at the garage she was asked if she wished to be taken to the hospital but she said "no"; that she told the driver and others at the garage that she would get her own doctor; that she did not want "no company doctor"; that she spent about ten minutes at the garage, after which she went to a drug store on the corner of Ninth and Montgomery Streets and inquired if the doctor who had offices above the drug store was in; that she stayed about ten minutes in the drug store, after which she walked to her home, carrying the pitcher of beer.

Plaintiff further testified that as a result of her injuries she was confined to her bed for about four days, and that she had the doctor visit her seven or eight times within the following three or four weeks, and that for about five months she went to the doctor's office from time to time and, at the time of the trial, had not been able to work since the accident.

Dr. Herman L. Weiterer and Dr. Alexander E. Horwitz testified on behalf of plaintiff concerning her injuries and her condition at the time of the trial, but inasmuch as no question as to the nature and extent of such injuries arises on this appeal, we deem it unnecessary to set forth the doctors' testimony here.

Joseph Gebhart, a pharmacist operating a drug store at the corner of Ninth and Montgomery Streets, testified as a witness for plaintiff that he saw plaintiff between 4:30 and 5 o'clock on the evening she was injured; that about a half hour later she came into his drug store "in a sort of a shocked condition" and told him that she was injured; that her clothes were dirty, and that she inquired if the doctor was upstairs; that he investigated and found the doctor was not in his office and came back and told plaintiff so.

Defendant Albert Rieth testified that he was doing business as the Rieth Truck Service and operated a garage at Ninth and Montgomery Streets in December, 1940; that on the evening in question his auto truck was parked in front of Feldkamp's Hotel on the northeast corner of Ninth and Montgomery; that he sent Floyd Brooks to make a service call and that Frank Barrett went along with him; that he walked across the street with the two named men and was just turning around when they started backing up the truck as plaintiff came out of the saloon; that the next he knew plaintiff was sitting on the curb and the beer had been spilled from her pitcher; that he turned around real quick and helped to pick her up; that when she was over at his garage, immediately following the accident, he said, "Lady, I would like to take you to the doctor"; that he was worried about it himself, but that plaintiff said to him, "No, I want my pitcher of beer"; that he then bought her a pitcher of beer and she went on home.

Frank Barrett testified on behalf of defendant that on December 19, 1940, he was a chauffeur in the employ of defendant; that on the evening in question, "I got in the truck. We were going to get a truck — just where I couldn't say, because I don't recall that particular day — which was a habit. I got into the truck that day with Bud Brooks. He was going to take me. We were parked in front of Feldkamp's. We started the motor, turned on the lights, backed up a few feet. He jumped out of the truck. I jumped out. I seen him run out, and there was a lady there holding a pitcher in her hand, and the first thing she said, `You spilled all my beer,' and she wanted some more beer. * * * So then she went across the street, she walked herself, somebody was with her. I don't recall whether Bud was there, or whether Al walked. They both came out, went across the street. Al asked her if she would go to the doctor, or to the hospital. She said she wouldn't, she wasn't hurt. She wasn't limping. * * * The truck could be heard very easily. It was a dark evening and I noticed him turn the lights on. * * *"

Floyd Brooks, the driver of the automobile truck, testified on behalf of defendant as follows: "I am employed by Al Rieth, Rieth Truck Service. Yes, on December 19, 1940, I was working for Rieth Truck Service. * * * I was over at the garage and had received a service call. I went over to get the truck. It was parked close behind another truck — or rather, car. I went to back up, looked back, turned the lights on, and I didn't see anybody. Started the motor, started backing up, then looked back again, and I seen her in the back of the truck. I stopped as quick as I could, went back to help her up. She was halfway up at that time. The first thing she told me she wanted the beer that I had spilled. She wanted me to fill the pitcher again, so I taken her in the saloon and Mr. Rieth bought her beer, and she said she didn't want no doctor. So I went and got in the truck and went on about my business. * * * She said she wasn't hurt. Yes, he wanted to take her to a doctor right then and there. She said, `No, no doctor.' She was not limping when she left. * * * The truck is not very quiet, it makes plenty of noise. The lights were on and it had two red lights in the rear."

William Johnson testified that he was a police officer in the City of St. Louis; that on December 19, 1940, he saw plaintiff at Ninth and Montgomery Streets about 1:30 in the afternoon coming out of Feldkamp's. At this point plaintiff's counsel objected to the examination of the witness on the ground that the testimony was immaterial to the issues...