Latham v. Hosch
| Decision Date | 08 July 1921 |
| Parties | WALTER LATHAM, Respondent, v. G. CARLETON HOSCH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.
AFFIRMED.
Judgment affirmed.
Koerner Fahey & Young for appellant.
(1) That there is not sufficient evidence in said cause to raise an issue in behalf of respondent as to whether or not the automobile was being operated on the occasion in question by the man Jackson by or with the consent of, or under the direction of, this appellant, or for or in behalf of this appellant. Guthrie v. Holmes, 272 Mo. 215. (2) The court erred in refusing to give a withdrawal instruction to the jury requested by the appellant, the respondent having asked only an instruction on the measure of damage, when said withdrawal instruction eliminated from the jury the consideration of a certain city ordinance which had not been introduced in evidence in said cause. (3) The contributory negligence of respondent as a matter of law wherein respondent testified that he saw appellant's car moving westwardly on Washington avenue when it was one hundred (100) feet east of respondent's machine, knew that it was moving very rapidly (thirty to thirty-five miles an hour) and respondent cuts in ahead of this onrushing car, and on cross-examination testified that if he had brought his machine to a standstill instead of taking the chance, the accident would not have happened. (4) The improper remarks to the jury by counsel for respondent. Haake v. Milling Co., 168 Mo.App. 180; Buck v. Buck, 267 Mo. 660.
Kelley Starke & Moser for respondent.
(1) Respondent did not rely upon a presumption that appellant's employee Jackson was acting within the scope of his employment at the time of the collision, but introduced positive testimony to that effect in the form of admissions made by appellant concerning that fact. (2) Admissions of a party to a suit are as competent as any other form of evidence and may be used as original testimony, and a cause of action may be proven by the introduction in evidence of admissions made by the defending party. Black v Epstein, 221 Mo. 286; Smith v. Witton, 69 Mo. 458; Sills v. Burge, 141 Mo.App. 148; 22 Corpus Juris, 424. (3) Where an admission is later repudiated or denied, the question of fact thus created is for the jury. Kirkwood, etc. v. Van Ness, 61 Mo.App. 361; Kirkpatrick v. Railway Co., 211 Mo. 68. (4) Appellant's instruction seeking to withdraw from the jury the assignment of negligence to the effect that appellant's automobile was being negligently operated south of the center line of Washington Avenue was properly refused because there was substantial testimony to establish that fact and because the reference to an ordinance contained in said instruction was improper and constitutes mere surplussage. (5) An instruction requiring the jury to refer to a pleading in order to properly understand it, is erroneous and properly refused. Webb v. Carter, 121 Mo.App. 147; Bank v. Dowler, 163 Mo.App. 65; Sinnamon v. Moore, 161 Mo.App. 168; Small v. Ice Co., 179 Mo.App. 456. (6) Respondent was not guilty of contributory negligence as a matter of law. (7) If appellant's counsel was not satisfied with the ruling of the court on his objection to respondent's argument, it was his duty to request the court to discharge the jury, or to give a further reprimand or rebuke. His failure to do so precludes him from complaining of the court's action on appeal. State v. Anderson, 252 Mo. 72; State v. Harrison, 263 Mo. 662-3; McKinney v. Laundry Co., 198 Mo.App. 386; Harriman v. Dunham, 196 S.W. 443.
This is an action brought by plaintiff for damages on account of a collision between an automobile owned by the defendant and one owned by the plaintiff, in which collision it is alleged plaintiff's machine was damaged. The collision occurred on November 7, 1917, at the intersection of Washington avenue and Whittier street in the city of St. Louis, and is the same accident involved in the personal injury suit of Ethel Pinteardd, Administratrix of the estate of Scott Pinteardd v. G. Carleton Hosch, No. 16,653, decided by this court at this term in an opinion not yet reported.
The allegations of negligence in this case are that the driver of the defendant's car negligently failed to sound a horn, failed to keep a vigilant or any watch for automobiles at said intersection of said streets, or reduce the speed of his machine, or have same under control, operating it at a high and dangerous rate of speed, and, finally, that he negligently operated said machine south to the center line of Washington avenue in violation of section 1327 of an ordinance of the city of St. Louis, which provides that a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible.
The answer is a general denial and a plea of contributory negligence. The reply is a general denial. The cause was tried on March 24, 1919, before the court and jury and resulted in a verdict of $ 322.30 in favor of the plaintiff. Defendant appeals.
Our opinion in the case of Pinteardd v. Hosch, No. 16653, contains a more complete statement of the facts and circumstances attending this accident, as contained in that record. The record in this case discloses that the plaintiff owned an automobile and on the night of the accident was riding with one Scott Pinteardd in his machine intending to take him home from his work. He drove south on Whittier street to the intersection of Washington avenue, and after making the turn into Washington avenue he discovered defendant's car coming west on Washington avenue about a hundred feet away, when it swerved to the left of said street at a terrific rate of speed, striking plaintiff's automobile and causing it to be damaged. Plaintiff and Scott Pinteardd were in the front seat of plaintiff's car and defendant's car was driven by one William Jackson.
Appellant assigns as error:
First, that there is not sufficient evidence in the case to raise an issue in behalf of the plaintiff as to whether or not the automobile was being operated on the occasion in question by the defendant's employee, Jackson, in the scope of his employment;
Second, that the court erred in refusing to give a withdrawal instruction requested by the defendant, by which certain allegations of negligence were to be withdrawn from the consideration of the jury;
Third, that plaintiff should have been held guilty of contributory negligence as a matter of law, and,
Fourth, that certain remarks of counsel for plaintiff to the jury were improper.
The first complaint of appellant is that there is not sufficient evidence in the case to raise an issue in behalf of plaintiff as to whether defendant's automobile was being operated on the occasion in question by the driver, Jackson, for and in behalf of the defendant. We have discussed this question in the Pinteardd case, and therefore will not again review authorities under that point.
It is enough to say that the case of Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854, relied upon by counsel, is not in point. The plaintiff here does not rely upon any presumption that Jackson was acting within the scope of his employment as the chauffeur for defendant, but on the contrary plaintiff adduced evidence in the nature of admissions made by the defendant tending to prove that on the occasion in question Jackson was operating the defendant's automobile on the business and in the service of the defendant, in that on said occasion the employee, Jackson, was returning in the defendant's automobile to the defendant's home after having gone to the station to mail a special delivery letter for and under the direction of the defendant.
Admissions of a party to a suit are competent and they may be used by plaintiff in proving his cause of action. [Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Smith v. Witton, 69 Mo. 458.] And although the defendant in his testimony denied that such admissions were made by him, it is for the jury to determine whether the evidence of the admissions of defendant is true or false. [Kirkwood v. Van Ness, 61 Mo.App. 361.]
It is next argued that the court erred in refusing to give the withdrawal instruction requested by the appellant.
Plaintiff's petition alleges the violation of a certain specific duty under the common law, and, further, the violation of an ordinance of the city of St. Louis, to-wit section 1327 of the Revised Code of St. Louis, which, in effect, provides that a vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible.
The plaintiff offered only one instruction, and that was on the measure of damages, and submitted the question of defendan...
To continue reading
Request your trial