King v. Friederich

• Decision Date: 08 December 1931
• Docket Number: No. 21772.,21772.
• Citation: 43 S.W.2d 843
• Parties: KING v. FRIEDERICH.
• Court: Missouri Court of Appeals

43 S.W.2d 843

KING v. FRIEDERICH.

No. 21772.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Rehearing Denied December 22, 1931.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be officially published."

Action by Frances King against Joseph Friederich. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

F. A. Foster and Strubinger & Strubinger, all of St. Louis, for respondent.

BENNICK, C.

This is a companion case to the case of J. L. King v. Joseph Friederich, 43 S.W.(2d) 840, the opinion in which is handed down herewith. It will be recalled that Frances King, the plaintiff herein, is the wife of J. L. King, the plaintiff in the other action, and was riding with him in the automobile at the time of the collision with defendant's automobile. While the other action was brought by the husband to recover damages for his own injuries and for the loss of his wife's services, this action is by the wife to recover damages for the injuries she sustained. The two trials were necessarily conducted separately, but the material facts in the two cases are identical; and, for a full statement of the facts, the reader is referred to our opinion in the other case.

The trial was to a jury, resulting in the return of a verdict in favor of plaintiff, and against defendant, in the sum of $2,500. Judgment was rendered in conformity therewith; and, following the overruling of his motion for a new trial, defendant has duly appealed.

Admitting the sufficiency of the evidence to have taken the case to the jury, defendant assigns only one ground for reversal, which is that error was committed in connection with the giving of plaintiff's instructions Nos. 1 and 2, which read as follows:

"1. The Court instructs the jury that if you find and believe from the evidence that on the 1st day of January, 1929, plaintiff was riding in the automobile mentioned in the evidence, and that it was driven by her husband in a southwardly direction along and upon Gravois Avenue and River Des Peres Bridge, mentioned in the evidence, on the right-hand side thereof, if you so find; and that whilst plaintiff's husband operated said automobile, as aforesaid, the defendant, at said time, operated his automobile in a northwardly direction along and upon said street and bridge, and that said automobiles then and there came into violent collision; and if you further find and believe from the evidence that as defendant's automobile approached the said automobile in which plaintiff was riding, coming from the opposite direction, that the defendant's automobile was traveling on the west or left-hand side of said roadway and toward the automobile plaintiff was riding in, and if you further find that said defendant then and there failed and omitted to turn his said automobile to the right of the center of said roadway so as to pass the said automobile in which plaintiff rode without interference after the defendant saw, or by the exercise of due care could have seen, said automobile in which plaintiff was riding approaching on said roadway in time to have so turned and passed said automobile of plaintiff without interference, if you find he could have done so, then if you so find the facts to be, the Court instructs you that the defendant was guilty of negligence; and if you further find that such negligence, if any, of defendant directly caused, or contributed to cause, said automobiles to come into violent collision, and that plaintiff sustained injuries as a direct result of said collision, then plaintiff is entitled to recover in this action."

"2. The Court instructs you that if you find and believe from the evidence that at the time mentioned in the evidence plaintiff was riding in the automobile mentioned in the evidence; and that said...