Kleckamp v. Lautenschlaeger

• Decision Date: 25 November 1924
• Docket Number: 24625
• Citation: 266 S.W. 470,305 Mo. 528
• Parties: FRED W. KLECKAMP, JR., by Next Friend, FRED W. KLECKAMP, SR., v. GEORGE W. LAUTENSCHLAEGER et al., Appellants
• Court: Missouri Supreme Court

266 S.W. 470

305 Mo. 528

FRED W. KLECKAMP, JR., by Next Friend, FRED W. KLECKAMP, SR., v. GEORGE W. LAUTENSCHLAEGER et al., Appellants

No. 24625

Supreme Court of Missouri

November 25, 1924

Appeal from St. Louis City Circuit Court; Hon. Charles W Rutledge, Judge.

Affirmed.

Bryan Williams & Cave for appellants.

(1) In a suit against the owner of an automobile for the injuries caused by his servant or driver, the competency or incompetency of the servant as a driver is immaterial, and the court erred in admitting, over defendant's objection evidence tending to show that the defendants' driver was an incompetent chauffeur. Carlson v. Connecticut Co., 8 A. L. R. 569, and note; Central Railroad & Banking Co. v. Roach, 64 Ga. 635; Towle v. Pacific Imp. Co., 98 Cal. 342; Fonda v. Ry. Co., 71 Minn. 38; Cunningham v. Ry. Co., 115 Cal. 561; Langsford v. Electric Ry. Co., 174 Cal. 729; Wallis v. Southern Pac. Co., 184 Cal. 662; American Strawboard Co. v. Smith, 94 Md. 19; Maguire v. Middlesex Railroad, 115 Mass. 239. Nor was this evidence as to the driver's incompetency rendered material or admissible by any evidence offered by the defendants. The driver had been asked no questions by the defendants to answer which required any experience in driving an automobile. (2) The verdict is excessive and is so excessive as to require a remittitur.

Frank H. Haskins for respondent.

(1) Regardless of whether the questions asked Vawter regarding the extent of his experience in driving a machine were competent for the purpose of proving negligence, they were competent to show his knowledge regarding facts he testified to as to the speed he was driving and the space in which a machine could be stopped. Aston v. Transit Co., 105 Mo.App. 231; Walsh v. Mo. Pac. Ry. Co., 102 Mo. 586; Gourley v. Railway, 35 Mo.App. 92; Berry on Autos (3 Ed.) secs. 991, 1012; Johnson v. Bay State Railroad Co., 222 Mass. 583. (2) The questions asked Vawter regarding the extent of his experience in driving a machine were competent for the purpose of showing negligence. Jones v. Co-Operative Assn., 109 Me. 448; Fisher v. Railroad Co., 141 Wis. 515; Chrisman v. Belt Ry. Co., 110 La. 640; Williams v. Edmunds, 75 Mich. 92; Vernon v. Cornwall, 104 Mich. 62; Broadstreet v. Hall, 168 Ind. 192; Ill. Cen. Ry. Co. v. O'Neil, 100 C. C. A. 658; Blalack v. Blacksher, 11 Ala.App. 544; Blumenthal v. Electric Co., 129 Iowa 322. (3) It is competent to show reckless habits or incompetence of a servant to show that his conduct on the occasion of the injury was in keeping with these habits. Craven v. Cen. Pac. Ry., 72 Cal. 348; Vicksburg Ry. v. Patton, 31 Miss. 194; State v. Boston & Maine Ry., 58 N.H. 410.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Suit by plaintiff, a minor, by next friend, against defendants, who are copartners, doing business under the firm name of Lautenschlaeger Brothers, to recover damages for personal injuries.

Plaintiff was riding a bicycle and was run down and struck from the rear by defendants' automobile, driven by an employee while upon defendants' business.

The petition pleads an ordinance of the city of St. Louis requiring a vehicle, except when passing a vehicle ahead, to keep as near the right-hand curb as possible, and, when overtaking and passing another vehicle, to keep to the left. The petition charges defendants with negligence in these respects: (1) Defendants saw, or by exercise of ordinary care could have seen, plaintiff in front of and in imminent peril of being struck by defendants' automobile, in time thereafter, by exercise of ordinary care with the means at hand and with safety to the driver and occupants, to have slowed down the speed, stopped, or turned said automobile so as to have avoided striking plaintiff, but negligently failed to do so; (2) failure to give any signal or sound to warn plaintiff of his danger; (3) failure to keep as near the right-hand curb as possible; (4) attempting to pass plaintiff on the right-hand instead of on the left-hand side; (5) defendants' automobile was operated by a chauffeur under the age of eighteen years and who had not been licensed as a chauffeur, and defendants knew, or by the exercise of ordinary care, would have known these facts.

The answer is a general denial and a plea of contributory negligence.

Plaintiff, a boy fourteen years of age, was injured on August 23, 1920. He was riding a bicycle north on Florissant Avenue in St. Louis, at or near its intersection with Adelaide Avenue. Florissant Avenue is a north-and-south street, and Adelaide Avenue is an east-and-west street. Plaintiff was carrying a package in his left hand and guiding his bicycle with his right hand. Defendants' place of business was on Florissant Avenue, a short distance from Adelaide Avenue. When plaintiff passed defendants' store, defendants' automobile was still standing in front of the store, about forty-three feet south of the south line of Adelaide Avenue. A plat in evidence shows Adelaide Avenue to be sixty feet wide, having a roadway of thirty-six feet in the center. There is a car track on Florissant Avenue twenty-two feet distant from the east or right-hand side of that street.

Plaintiff testified that, when he approached defendants' automobile, he swung out to the left until he was about two or three feet from the car track. After he had passed the automobile, he started to swing toward the right and, after reaching the middle of Adelaide Avenue, he continued north in a straight line parallel with the car track and did not swing any more either to the right or left. When he started straight ahead, he was about half way between the curb and car track, maybe a foot or two closer to the car track.

One of the defendants testified that the whole width of Adelaide Avenue was between the automobile truck and the boy when he began to swing over toward the right, and "the farthest I saw the boy get from the car track was between four and five feet. He was never farther than four or five feet from the car track and during that time he never got closer to the car track than four feet. He never went more than a foot out of a straight line. The boy was about four or five feet from the car track when he was struck." Witness heard no horn sounded to warn plaintiff of his danger, although there was a horn on the car. The evidence tends to show that plaintiff was struck approximately twenty-five feet north of the building line on the north side of Adelaide Avenue.

The driver of the automobile, Claude Vawter, testified, as a witness for defendants, that plaintiff was about the middle of Adelaide Avenue when he first saw him. The automobile engine had just been started and the automobile had not then moved from its position. Plaintiff was going north "zig-zagging" to the right, and after the automobile started and had reached the middle of Adelaide Avenue, witness began to put on the brakes. He kept his eyes on plaintiff from that time on. On direct examination, witness testified the automobile was running five miles an hour and, on cross-examination, that it was traveling about seven miles an hour. He further testified he could stop the automobile, going seven miles an hour on that street, in eight or ten feet, and after he saw plaintiff "zig-zagging" the automobile traveled about forty feet before he stopped it. The left fender of the automobile struck the rear wheel of the bicycle, causing plaintiff to fall sideways toward the car track.

Witness Herbert Vicks testified on behalf of plaintiff that he was riding in the automobile with the driver, Vawter, when plaintiff was hit. When the machine started up plaintiff was about the middle of Adelaide Avenue, about five feet from the car track, going north. After plaintiff passed the center of Adelaide Avenue he did not swing any toward the right, but went in a straight line parallel with the street car track. The automobile was going about ten miles an hour and plaintiff was going about five miles an hour.

Appellants' abstract of the record recites that "there was evidence for plaintiff tending to prove the allegations of the petition as to the negligence of the defendants in the operation of said automobile, and there was evidence sufficient to justify the submission of plaintiff's case to the jury on the last-chance doctrine."

The jury returned a verdict in favor of plaintiff for $ 8000, upon which judgment was entered. After unsuccessfully seeking a new trial, defendants were allowed an appeal to this court.

Only two points are urged by appellants in their assignment of errors: (1) The alleged improper admission of certain testimony and (2) that the verdict is excessive. We will pass upon them in their order.

I. Appellants insist that the trial court erred in admitting, over their objection, certain evidence tending to show that their driver and employee, Claude Vawter, was an incompetent and inexperienced chauffeur.

The appellants offered but two witnesses, Charles Lautenschlaeger, and their driver, Claude Vawter. On cross-examination of defendant Lautenschlaeger, the following occurred:

"Q. Did he [defendants' driver] show you a chauffeur's license? A. No, sir.

"Judge Cave: I object to that as irrelevant and immaterial in this case. That does not throw any light on how this accident happened. The question is how the accident happened.

"Mr. Haskins: That point is raised upon motion to strike that out in the petition. We have pleaded that as one ground of negligence. His motion to strike out that part of my petition was overruled. However, I will withdraw the question to save time."

The driver, Vawter, testified on direct examination:

"Q. I believe you had just gone to work for Lautenschlaeger Brothers on that day? A. Yes, sir." Witness was...