Kleckamp v. Lautenschlaeger

• Citation: 266 S.W. 470
• Decision Date: 25 November 1924
• Docket Number: No. 24625.,24625.
• Parties: KLECKAMP v. LAUTENSCHLAEGER et al.
• Court: United States State Supreme Court of Missouri

266 S.W. 470

KLECKAMP v. LAUTENSCHLAEGER et al.

No. 24625.

Supreme Court of Missouri, Division No. 1.

November 25, 1924.

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

Action by Fred W. Kleckamp, Jr., by his next friend, against George W. Lautenschlaeger and another. From a judgment for plaintiff, defendants appeal. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellants.

Frank H. Haskins, of St. Louis, for respondent.

SEDDON, C.

Suit by plaintiff, a minor, by next friend, against defendants, who are copartners, doing business under the firm name of Lautenschlaeger Bros., 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 18 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 14 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 43 feet south of the south line of Adelaide avenue. A plat in evidence shows Adelaide avenue to be 60 feet wide, having a roadway of 36 feet in the center. There is a car track on Florissant avenue 22 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 halfway 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 25 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 "zigzagging" 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 5 miles an hour and, on cross-examination, that it was traveling about 7 miles an hour. He further testified he could stop the automobile, going 7 miles an hour on that street, in 8 or 10 feet, and after he saw plaintiff "zigzagging" the automobile traveled about 40 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 5 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 about 10 miles an hour, and plaintiff was going about 5 miles an hour.

Appellants' abstract of record recites:

"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 $8,000, 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 Bros. on that day? A. Yes, sir."

Witness was then asked where plaintiff was when witness first noticed him, and where witness Vawter was at that time. He was then asked and answered: "Q. About how fast were you running? A. About five miles an hour."

On cross-examination of this witness by respondent, the following occurred:

"Q. How many times have you driven a Ford car before you went to work for Lautenschlaeger?

"Judge Cave: I object to that as wholly immaterial.

"The Court: The objection is overruled.

"Judge Cave: My objection is on the ground that the defendant in this case is liable or not liable according to how the accident happened. It does not make any difference if this boy had ever driven a car before or not. Liability for a thing must be based on how the accident happened.

"The Court: The objection is overruled. (To which ruling of the court counsel for defendants then and there duly excepted and still continues to except.)

"Q. How often had you driven a Ford car before driving this one? A. I drove for my brother about two months. Q. For your brother? A. Yes, sir; he had one and he was staying with us at the time and I drove his car. Q. How often? A. About once a week. Q. For two months? A. Yes, sir. Q. Did you drive it all day? A. No, sir. Q. How long did you drive it at a time? A. About half an hour at a time Q. Where was that? A. That was just riding around. Q. In St. Louis? A. No; that was at Dundas. Q. That was the only time you have driven an automobile before you went to work for Lautenschlaeger? A. Yes, sir. Q. You drove it half an hour once a week for two months? A. Yes, sir. Q. You had no other experience with automobiles besides that? A. No, sir, Q. How long before you had gone to work for Lautenschlaeger was the first time you had driven that Ford car for your brother? A. About three months. Q. About three months since you had driven a car at all? A. Yes, sir. Q. How many trips did you make with this car of Lautenschlaeger's before you hit this boy? A. I never made `airy' trip at all. Q. That was the first time you ever drove that car You had only driven it a distance from where you started to where you hit the boy, is all you had ever driven that car? A. Yes, sir."

Counsel for appellants contend that whether defendants' driver, Vawter, was, at the time of the collision with plaintiff's bicycle, competent or incompetent, experienced or inexperienced, is not a material issue in this suit, and, regardless of his experience or inexperience, the defendants are to be held liable in this action, if at all, solely because of some negligent...