Lenz v. Seibert

• Decision Date: 15 February 1924
• Docket Number: No. 17963.,17963.
• Parties: LENZ v. SEIBERT.
• Court: Missouri Court of Appeals

259 S.W. 829

LENZ v. SEIBERT.

No. 17963.

St. Louis Court of Appeals, Missouri.

February 15, 1924.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Albert F. Lenz against Joseph A. Seibert. Judgment for plaintiff, defendant appeals. Affirmed.

Conrad Paeben, of St. Louis, and Jos. C. McAtee, of Clayton, for appellant.

Harry Robecan and Curlee & Hay, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action to recover damages for personal injuries sustained by the plaintiff by reason of being struck by an automobile operated by the defendant, and alleged to have been occasioned by defendant's negligence.

The amended petition, upon which the case was tried, alleges that on the evening of October 22, 1920, plaintiff was walking on Gravois avenue, a public highway in St. Louis county, and that defendant, driving his automobile in the same direction in which plaintiff was walking, carelessly and negligently drove the same upon and against Plaintiff, whereby plaintiff was injured. And it is alleged that plaintiff's injuries were received as a direct result of the negligence of the defendant in certain particulars which are set out as five separate, specific assignments of negligence. The case was submitted to the jury, however, upon but two of these assignments or specifications of negligence, which we quote from the petition as follows:

"(1) That defendant was operating said automobile on the public highway aforesaid without keeping a vigilant watch, or any watch, for plaintiff or other pedestrians who might be using said highway."

"(4) That defendant failed to have said automobile lighted as required by law, in this, to wit: That he failed to have in the front of said machine at least two lighted lamps showing white lights, visible under normal atmospheric conditions at least 500 feet in the direction in which said motor vehicle was facing, and which light should produce sufficient light to reveal objects 150 feet ahead."

And it is alleged that "as the direct result of the negligence of the defendant aforesaid" plaintiff sustained the injuries described in the petition.

The evidence in plaintiff's behalf tends to show that shortly before 10 o'clock on the evening of October 22, 1920, plaintiff, while walking in a southwesterly direction on Gravois road in St. Louis county, a short distance west of the city limits of the city of St. Louis, was struck from the rear by defendant's automobile which defendant was driving in the same direction in which plaintiff was walking, whereby plaintiff sustained injuries. Gravois road extends from northeast to southwest; and at the place where the casualty occurred the central and main portion of the road is paved with concrete, the edges being of dirt or macadam. Plaintiff testified that he was walking "on the right side of the road several inches from the edge on the north side"; that he heard defendant's automobile approaching from his rear, turned and saw that the automobile was near the center of the road, but, as he was "well in the clear," he paid no further attention to it until it struck him. He said that he "did not notice any lighted lamps in the front of the machine," his attention being attracted thereto by the noise which it made.

One Torrence, who arrived on the scene after defendant's machine had stopped, testified, as plaintiff's witness, that there were no lights on defendant's automobile as it stood at the edge of the road; and he said that defendant told him "something about the lights being bad; that he did not see the man until he got there."

The defendant testified that his automobile was equipped with both headlights and side oil lamps; and that the headlights as well as the oil lamps were burning while the machine was running. He further testified that as he was proceeding along the road he heard the groans and cry of a man, whereupon he stopped, got out of the automobile, walked back 10 or 15 feet, and found plaintiff lying in the roadway; that he asked plaintiff what had happened, and the latter said: "You struck me by your machine." And he said that if he struck plaintiff he did not know how it happened; that he felt no impact of the machine against any object. And the testimony of a lady who was an occupant of the automobile is to like effect.

The court refused to direct a verdict for defendant, as requested by him, and, at tile request of plaintiff, instructed the jury as follows:

"(2) You are instructed that by the laws of the state of Missouri every motor vehicle while on the public highways, whether in operation or otherwise, during the period from one-half hour after sunset to one-half hour before sunrise, is required to carry, at the front, at least two lighted lamps not exceeding 36 candle power each, showing white lights visible under normal atmospheric conditions at least 500 feet in the direction towards which said motor vehicle is facing, which lamps shall produce sufficient light to reveal obstacles 150 feet ahead.

"(3) The court instructs the jury that if you find and believe from the evidence that * * * defendant negligently failed to keep a watch for pedestrians on said road; or if you find that defendant failed to have the said automobile lighted as required by the laws of the state of Missouri as declared in another instruction, and if you further find that as a direct result of said acts, or either of them, if you find defendant committed them, or either of them, defendant's said car ran upon and injured plaintiff, and that plaintiff at the time was exercising ordinary care for his own safety, then your verdict must be for the plaintiff."

The court refused instructions offered by defendant seeking respectively to withdraw the two assignments of negligence upon which the case was submitted to the jury.

The trial below resulted in a verdict and judgment for plaintiff in the sum of $3,300, and the defendant has brought the case here by appeal.

The point, half-heartedly made by defendant, appellant here, that plaintiff failed to make a case for the jury is obviously without merit,

The principal question involved in the appeal is raised by the assignments of error relating to the giving of plaintiff's instructions, supra, and the refusal of defendant's instruction seeking to withdraw from the jury the fourth assignment of negligence in the petition based upon the alleged violation of section 7577, Revised Statutes 1919. The statute in question provides that every motor...