Kilcoyne v. Metz
| Decision Date | 08 January 1924 |
| Docket Number | No. 18057.,18057. |
| Parties | KILCOYNE v. METZ et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Frank Landwehr, Judge.
"Not to be officially published."
Action by Hazel Kilcoyne against William E. Metz and another. Judgment for plaintiff, and defendant named appeals. Affirmed.
Geers & Geers, of St. Louis, for appellant. Kelley, Starke & Hassett and W. E. Moser, all of St. Louis, for respondent.
This action was brought by plaintiff against William E. Metz, appellant here, and his sister, Louise Metz, to recover for personal injuries sustained by plaintiff by reason of the alleged negligence of defendants in the operation of an automobile.
The petition charges that on May 24, 1921, plaintiff was a pedestrian on Grand avenue at or near its intersection with Arsenal street, these being public highways in the city of St. Louis, and that while she was crossing Grand avenue from the east to the west side thereof, and attempting to pass between the rear of defendants' automobile and in front of another automobile, defendants' automobile, through the negligence and carelessness of defendants, was caused and permitted to move backward suddenly and without warning crushing plaintiff between the two automobiles and injuring her.
The assignments of negligence, in addition to the general charge that defendants failed to exercise ordinary care in the premises, are that defendants failed to sound a warning; that defendants knew, or by the exercise of ordinary care could have known, that plaintiff was in a position of danger in time, by the exercise of ordinary care, to have stopped the automobile or to have sounded a warning of its approach, but negligently failed to do so; and that defendants negligently failed to give a signal or to sound a warning of their intention to back the automobile, or to display any signal, and negligently failed to exercise unceasing vigilance, in violation of an ordinance of the city of St. Louis.
The answer of defendant Louise Metz is a general denial, coupled with a plea of contributory negligence; while the answer of defendant William E. Metz is a general denial.
At the close of all the evidence in the case plaintiff dismissed as to the defendant Louise Metz. There was a verdict and judgment for plaintiff in the sum of $2,000 against defendant William E. Metz, and he has appealed to this court. We shall hereinafter refer to William E. Metz as the defendant.
Grand avenue extends north and south, and is intersected by Arsenal street, extending approximately east and west; and on both streets there are double car tracks. Plaintiff's testimony shows that on May 24, 1921, shortly after 4 p. m., she alighted from a north-bound car on Grand avenue, which had stopped immediately south of Arsenal street, walked around the front end of that car and behind a standing south-bound car on that street, and proceeded west across Grand avenue at the regular crossing place for pedestrians, in line with the sidewalk on the south side of Arsenal street. It appears that several automobiles, which were proceeding south on the west side of Grand avenue, not far from the west curb, had stopped, one of these being an automobile belonging to the defendant and driven by his sister Louise Metz, which was standing just south of the crossing mentioned, and that another automobile had stopped with the front end thereof about 4 or 5 feet north of the rear end of defendant's automobile, through which space, between the two automobiles, pedestrians were passing. Plaintiff, with a baby in her arms, was attempting to pass between these two automobiles when defendant's automobile was caused to back suddenly upon her, crushing her between the two automobiles and injuring her. It is conceded that defendant's sister did not sound the horn as a warning of her intention to back the automobile. Nor is there any testimony that she looked to the rear, or otherwise exercised any precaution in the matter, beyond the testimony of herself and one Briggs, her companion in the automobile, that before backing the same she held out her hand. She testified that an automobile which was standing a short distance in front of defendant's automobile started suddenly to back, whereupon, to avoid being struck thereby, she quickly held out her hand and backed defendant's automobile. Plaintiff, and witnesses in her behalf, testified that they did not see the driver give any signal by holding out her hand.
It is undisputed that the automobile in question was owned by the defendant William E. Metz; and the only testimony having any tendency to show that defendant's sister, who was driving the automobile, was defendant's agent and was at the time acting for and furthering the business of her brother, is the testimony of plaintiff's husband, called as a witness for plaintiff. He testified that about two weeks after the casualty he went to the home of defendant and had a conversation with him, in the course of which defendant said that on the morning of the day of plaintiff's injury his sister, who was getting ready to go to a picnic, took him in the automobile to the Rubicam School, situated on the southwest corner of Grand avenue and Arsenal street, which he was attending, that she "was to return that evening and get him at the Rubicam School," and was returning to call for him there when the casualty occurred. On cross-examination the witness said:
It is unnecessary to notice the testimony adduced in plaintiff's behalf, tending to show the extent of her injuries.
In defense, Louise Metz, then Mrs. Notter, testified that on May 24, 1921, she and her brother lived with their parents at 4007 Gravois avenue in the city of St. Louis; that her brother owned the automobile and was attending the Rubicam Business School at Grand avenue and Arsenal street; that she did not have "standing permission" to use the automobile but usually asked his permission, though she forgot to do so on this occasion; that on the day of plaintiff's injury she did not take her brother to school, but was asleep when he left home; that she had previously planned a picnic with a friend, one Briggs, and on the day of the casualty, at about 11 o'clock in the forenoon, she drove the automobile to Grand and Gravois avenues, some blocks south of Arsenal street, where she met Briggs, and they then drove north on Grand avenue to Arsenal street, west on Arsenal and then north on Kingshighway to Forest Park; and that in returning that afternoon they drove east from Kingshighway through. Tower Grove lark, then south on Grand avenue to Arsenal street, intending to proceed south to Gravois avenue where she expected to leave Briggs, who did not, however, live in that immediate vicinity, but resided on Eiler street, which is referred to as being somewhere east of Grand avenue. She testified that her brother did not ask her to do anything for him that afternoon, that she was not intending to call for her ...
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