Lamar v. Morton Salt Co.

• Decision Date: 03 June 1922
• Docket Number: No. 16939.,16939.
• Citation: 242 S.W. 690
• Parties: LAMAR v. MORTON SALT CO.
• Court: Missouri Court of Appeals

242 S.W. 690

LAMAR v. MORTON SALT CO.

No. 16939.

St. Louis Court of Appeals. Missouri.

June 3, 1922.

Rehearing Denied June 20, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by J. J. Lamar against the Morton Salt Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Earl M. Pirkey, of St. Louis, for appellant.

James A. Waechter, of St. Louis, for respondent.

ALLEN, P. J.

This is an action for damages alleged to have been done to plaintiff's automobile by reason of being struck by an automobile belonging to defendant and driven by the latter's servant, at or about the intersection of Euclid avenue and Lenox place in the city of St. Louis. The trial below, before the court and a jury, resulted in a verdict and judgment for the defendant, and the case is here on plaintiff's appeal.

Hortense place, a street extending east and west in said city, intersects the west line of Euclid avenue, which extends north and south. Lenox place begins at the east line of Euclid avenue, nearly opposite but a short distance south of Hortense place, and extends east therefrom, making what is termed in the testimony a "jog" in the Euclid avenue crossing at this place. There are pillars forming "gates" at the entrance to Hortense place from Euclid avenue. Plaintiff drove his automobile out of Hortense place eastwardly into Euclid avenue, and proceeded toward the entrance to Lenox place, crossing Euclid avenue. When near the entrance to Lenox place his automobile came into collision with defendant's automobile, which was proceeding north on the east side of Euclid avenue. According to the testimony of plaintiff, defendant's automobile ran into the right side of plaintiff's automobile, toward the front thereof. The testimony of defendant's driver tends to show that plaintiff's automobile ran into defendant's automobile. Both automobiles were damaged.

Plaintiff testified that as he passed out of the gate at the entrance to Hortense place, his automobile was proceeding at the rate of about 8 miles per hour; that he then saw defendant's automobile about 150 feet south of him on the east side of Euclid avenue, proceeding north at a rate of speed of about 20 miles per hour; that he continued across Euclid avenue in a general southeasterly direction toward the entrance to Lenox place, without making an effort to stop, apprehending no danger from defendant's automobile. The testimony is that Euclid avenue is about 33 feet in width, but the distance to be traversed in thus crossing Euclid avenue at an angle does not definitely appear.

The testimony of defendant's driver tends to show that because of the gates and the shrubbery thereabout he did not see plaintiff's automobile until it suddenly emerged from Hortense place into Euclid avenue, proceeding at the rate of about 20 miles per hour, at which time defendant's automobile was about 50 or 60 feet south of Hortense place, or about 30 or 40 feet south of Lenox place; that defendant's automobile was proceeding at the rate of about 15 or 16 miles per hour; that the witness made every effort to stop, and turned defendant's automobile somewhat toward the east, but that plaintiff's automobile struck the front portion of defendant's automobile when the latter was "about at a stop." Defendant's driver further testified that, at the speed at which he was going when he saw plaintiff's automobile, he could have stopped defendant's automobile in approximately 40 feet.

The assignments of negligence are the violation of an ordinance giving vehicles going in an easterly or westerly direction the right of way over other vehicles; the violation of a speed ordinance; the negligent failure of defendant's driver to sound a horn or give other warning; and the negligent failure of defendant's driver to stop or check the speed of defendant's automobile when he knew, or by the exercise of ordinary care would have known, that plaintiff's automobile was in danger of being struck thereby.

The errors assigned here pertain to the instructions given on behalf of the defendant. One instruction complained of is as follows:

"The court instructs you that if you find and believe from the evidence and all the facts and circumstances in this case that the injuries sustained by plaintiff's automobile were the result of mere accident or misadventure, without "negligence on the part of any one, the plaintiff cannot recover in this action, and your verdict should be for the defendant."

It is contended that the evidence adduced did not warrant the giving of this instruction, and that the giving thereof was prejudicial to plaintiff, appellant here. Plaintiff's evidence, as shown above, tends to show that the collision was due to the negligence of defendant's driver; while defendant's evidence tends to show that it resulted proximately from plaintiff's own negligence. There is nothing in the evidence to support the view that the collision was due to pure accident or misadventure, unmixed with negligence on the part of either driver. In some cases the evidence is such as to warrant the giving of an instruction of this character. See ...