King v. Friederich

• Decision Date: 08 December 1931
• Docket Number: No. 21628.,21628.
• Parties: KING v. FRIEDERICH.
• Court: Missouri Court of Appeals

43 S.W.2d 840

KING v. FRIEDERICH.

No. 21628.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by J. L. 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 an action for damages growing out of a collision between an automobile driven by plaintiff, J. L. King, and one driven by defendant, Joseph Friederich. With plaintiff at the time was his wife, Frances King, who also sustained injuries in the accident. The collision occurred early in the morning of January 1, 1929, the point of the accident being the bridge across the River Des Peres, on Gravois road, near the southwestern limits of the city of St. Louis.

Plaintiff's petition was in two counts, a recovery being sought in the first count for his own injuries; and in the second count, for the loss of services of his wife, together with the expense incurred by him in the treatment of her injuries. No point being made about the sufficiency of the proof of defendant's negligence, the theory of the negligence assigned in the petition is of unimportance. The answer of defendant was a general denial, coupled with a counterclaim for the damages sustained by him in the collision; and the cause of action pleaded in the counterclaim was duly put at issue by plaintiff's reply.

Upon a trial to a jury, a verdict was returned, finding the issues in favor of plaintiff on the first count of his petition, and assessing his damages at the sum of $3,000. The verdict was in favor of defendant on the second count of the petition, and in favor of plaintiff on the counterclaim. Judgment was rendered accordingly; and, following the overruling of his motion for a new trial, defendant has duly appealed.

The evidence shows that the bridge in question is approximately sixty feet in width, and three hundred feet in length, and that beyond the bridge, towards the county, Gravois road retains its full width for about a city block, and then narrows down to the conventional paved highway as it passes up a slight hill with one or more cemeteries to the right.

According to the evidence for plaintiff, he and his wife were leaving the city, en route to their home near the village of Fenton, where plaintiff was employed on a farm. The time was 4 o'clock in the morning, following the termination of festivities in celebration of the advent of New Year. That plaintiff, earlier in the evening, had permitted himself some slight indulgence in an artificial stimulant befitting the occasion, was not denied; but that he was in anywise under its influence, either then or at the time of the accident, was strongly disputed. The weather was quite cold; it had been raining, and the streets were frozen; but that their slippery condition had any direct connection with the accident seems not to be suggested.

As plaintiff approached the bridge, running along at a speed of fifteen or twenty miles an hour, and while he was yet about one hundred feet away from it, he first saw defendant's automobile, coming down the hill alongside the cemetery, and approaching the bridge from the opposite direction. Plaintiff was on his own side of the street, with his automobile some four or five feet from the right-hand curb; and, when defendant's automobile reached the wide expanse of the road, as it entered the city limits a full block from the bridge, plaintiff, who was then in the act of going upon the bridge, discovered for the first time that it, too, was on his side of the street, which means that it was on the left side of the street from the standpoint of the defendant. While plaintiff could not estimate defendant's actual speed, he testified that it was much faster than his own.

Evidently fearful of a collision, plaintiff slowed down to four or five miles an hour, and pulled over to the right curb to permit his wife to alight from the car; but, seeing he had no time for that to be accomplished, he immediately changed his course over to the left, towards the center of the bridge, so as to permit defendant, who was continuing directly towards him at the same speed, to pass to his right, between his automobile and the right side of the bridge. At the moment plaintiff started to pull to his left, defendant's automobile was from one hundred to one hundred fifty feet away. Plaintiff had attained a speed of about ten miles an hour, and had moved over near the center of the bridge, though he was yet wholly on his own side of the road, when defendant, who by that time had approached within twenty-five or thirty feet of him, suddenly swerved his car directly over towards plaintiff's car, before plaintiff could escape its path, and ran headlong into him, producing the injuries for which plaintiff has sued.

Defendant's theory of the accident, in contradistinction to that of plaintiff, was that he was driving on his own side of the road, approaching the bridge from the county; that, before he reached the bridge, he saw plaintiff's automobile about one hundred fifty feet away from him, apparently on the proper side of the road; that, as he neared the bridge, he observed that plaintiff's automobile was continually veering over to its left; and that, when the two automobiles were within twenty-five or thirty feet of each other, plaintiff's car came directly in front of his own, resulting in the collision between the two before defendant could stop his car, or get it out of the other's course.

For his first assignment of error, defendant makes the point that his requested peremptory instruction in the nature of a demurrer to all the evidence should have been given. He does not argue that the proof of his own negligence was insufficient, but he rather insists that plaintiff should be adjudged guilty of contributory negligence as a matter of law. Briefly stated, his theory seems to be that it was directly through plaintiff's own fault that the collision occurred, due to the fact that he left his own side of the road, and then, while attempting to change his course back to the right, brought himself directly into the path of defendant's automobile. There is the further insistence that plaintiff had no occasion to anticipate that defendant would operate his automobile in such a way as to cause injury to plaintiff, that plaintiff's apprehension of danger was unfounded, and that, in attempting to avert the danger thus unreasonably anticipated, plaintiff failed to exercise...