Leahy v. Winkel

• Decision Date: 08 May 1923
• Docket Number: No. 174223,174223
• Citation: 251 S.W. 483
• Parties: LEAHY v. WINKEL at al.
• Court: Missouri Court of Appeals

251 S.W. 483

LEAHY v. WINKEL at al.

No. 174223

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Rehearing Denied May 25, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Fudge.

"Not to be officially published."

Action by John Leahy, a minor, by Mary Leahy, his next friend, against Emil Winkel and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Conrad Paeben, of St. Louis, for appellants.

McMahon & Berthold, Mark D. Eagleton, and Harry S. Rooks, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by Plaintiff by reason of being struck by an automobile operated by the defendant Emil Winkel while in the employ and engaged about the business of defendant August Winkel. The trial below, before the court and a jury, resulted in a verdict for plaintiff against both defendants for the sum of $1,500; and from a judgment entered accordingly the defendants prosecute this appeal.

The petition charges that defendant Emil Winkel (1) negligently failed to keep a vigilant watch for pedestrians on the street, (2) negligently failed to slacken the speed of the automobile or turn the same so as to avoid striking plaintiff, (3) negligently failed to sound a horn or other warning, (4) negligently operated the automobile at an excessive and dangerous rate of speed, and (5) negligence under the last chance doctrine.

Plaintiff, a boy then about nine years of age, was in O'Fallon street, a public street extending east and west in the city of St. Louis, at a point west of the intersection of that street with Twenty-First street, another public street in said city, when he was struck by the automobile, operated by defendant Emil Winkel, which was proceeding west on O'Fallon street.

Plaintiff, as a witness in his own behalf, testified, in substance, that he lived on O'Fallon street and was across the street from hie home when he was told by a boy that his mother wanted him; that he was attempting to cross O'Fallon street to his home when he was struck by the automobile; that he looked for vehicles when he started to cross the street, saw a truck (which he does not definitely locate) and started to cross, but did not at any time see the automobile which struck him; that he passed the "big truck" and did not then look to see whether any other machines were coming from the east. He was unable to say what point he had reached in crossing the street when. struck.

Defendant Emil Winkel was called as a witness for plaintiff. He testified that he worked for his father, defendant August Winkel, and was driving the truck in the course of such employment; that he was proceeding west on O'Fallon street, and had reached a point about 50 feet west of Twenty-First street, as that street intersects the north line of O'Fallon street (there being a "jog" in Twenty-First street at this intersection), when he observed a stake wagon in front of him proceeding west, on the rear end of which plaintiff was standing; that he undertook to pass this wagon on the left side thereof, and when he was about 8 or 10 feet therefrom plaintiff jumped from the wagon and ran into the machine which he was driving and was struck by the radiator thereof. He said that his machine was proceeding at the rate of about 10 miles per hour, and could be stopped in 15 feet; that he applied both the foot brake and the emergency brake, but was unable to avoid striking plaintiff; and that after striking plaintiff the machine ran about 8 feet, and the witness lifted plaintiff from beneath the rear part thereof. The witness further testified that at or shortly preceding the accident he saw no other vehicles upon the street except a large truck which was approaching from the west, going east, on the south side of O'Fallon street.

One Flannigan, a witness for plaintiff, testified that he was driving a horse and wagon west on O'Fallon street approaching Twenty-First street, and when he got "pretty near" the northeast corner of these intersecting streets he noticed the automobile driven by defendant Emil Winkel "shoot" past him, on the witness' left, make a "swerve" to the south side of the street, and hit plaintiff; and that the automobile was traveling 15 or 20 miles per hour when it passed him. He said that he saw the stake wagon proceeding west on O'Fallon street. He further testified as follows:

"Q. When you first observed this boy (plaintiff), where was he? A. Well, when I first seen him he started on a little run across the street about on the other side of Twenty-First street. There is a set-off there. Q. On which side of Twenty-First street was he? A. He came from the north side; he gave a little trot. Q. From the north side of O'Fallon, but which side of Twenty-First? A. On the west side of Twenty-First. Q. You were-over on the east side of Twenty-First? A. Yes, sir. Q. Can you tell us whether he was on that stake wagon? A. No, the stake wagon was, as near as remember, easy 10 feet past him. It was gone up the street."

This witness further testified that defendants' automobile was on the south side of the street, within 3 or 4 feet of the south curb, when plaintiff was struck thereby; and that it ran 15 or 20 feet after striking plaintiff. It appears that the witness did not cross Twenty-First street, but after observing the accident from a point near the northeast corner of these intersecting streets, turned his horse and wagon north into Twenty-First street. He said:

"At the time he (Emil Winkel) passed me he brought my attention to the speed, and I noticed the boy give a little slow trot, and he darted kind of that way toward the south side of O'Fallon street. Q. What darted that way? A. This machine this gentleman was in."

And the witness said that his horse's head was about on the northeast corner of these intersecting streets when the autombile struck plaintiff, and, as he thought, about 35 feet from the point where plaintiff was struck.

We shall later notice the testimony adduced touching the character and extent of plaintiff's injuries.

When the plaintiff rested his case in chief, the defendants offered a demurrer to the evidence as follows:

"Now come defendants at the close of plaintiff's case and demur to the evidence on the ground of variance between the pleading and the proof in the following particulars:,

"(1) The proof fails to sustain the first specific allegation of negligence in plaintiff's petition, that defendants failed to keep a vigilant watch for pedestrians on the traveled part of O'Fallon street, and not upon the sidewalk at its intersection with Twenty-First street.

"(2) The proof fails to sustain the second specific allegation in the plaintiff's petition that the defendants failed to slacken the speed of their automobile to avoid striking plaintiff, a pedestrian then upon said O'Fallon street at its intersection with Twenty-First street.

"(3) The proof fails to sustain the third specific allegation in plaintiff's petition that defendants failed to give the plaintiff a timely warning when plaintiff was in and upon the traveled part of O'Fallon street and not upon the sidewalk, at its intersection with Twenty-First street.

"(4) The proof fails to sustain the fourth specific allegation in plaintiff's petition, that defendants operated their automobile along O'Fallon street and approaching Twenty-First street at a high, excessive, and dangerous rate of speed, to wit, at the rate of 20 miles per hour.

"(5) The proof fails to sustain the fifth specific allegation in plaintiff's petition, that defendants saw plaintiff in and upon the traveled part of O'Fallon stree and not upon the sidewalk at its intersection with Twenty-First street in a position of imminent peril in time thereafter, by the exercise of ordinary care with the means at hand and with safety to defendants and the other occupants of defendants' automobile, to have stopped said automobile, slackened the speed of or turned same so as to avoid striking plaintiff, and that they failed so to do."

The court overruled this demurrer, and the defendants thereupon requested the court to give an instruction peremptorily directing a verdict for them, which the court refused. Plaintiff was then permitted to reopen his case for the purpose of introducing an ordinance of the city of St. Louis limiting the speed of automobiles therein to 8 miles per hour in business portions of the city and to 10 miles per hour in other portions thereof.

Defendants thereupon again requested the court to peremptorily direct a verdict for them; and this being refused defendants offered no evidence.

Plaintiff submitted his case to the jury upon the humanitarian or last chance doctrine alone, by the following instruction, viz.:

"The court instructs the jury that if you find and believe, from the evidence, on the 10th day of March, 1919, Emil Winkel was operating the automobile truck mentioned in evidence as the agent and servant of the defendant August Winkel, and if the jury further find and believe, from the evidence, that said defendant while so operating said automobile truck at the intersection of Twenty-First street and O'Fallon street,...