Lerbs v. Machetascheck

• Decision Date: 03 May 1932
• Docket Number: No. 21813.,21813.
• Citation: 49 S.W.2d 240
• Parties: LERBS v. MACHETASCHECK.
• Court: Missouri Court of Appeals

49 S.W.2d 240

LERBS v. MACHETASCHECK.

No. 21813.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by William H. Lerbs, Sr., against Fred Machetascheck. From a judgment for plaintiff, defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, and James Booth, of Pacific, for appellant.

W. L. Cole and T. P. Hukriede, both of Union, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by plaintiff while a passenger in an automobile being driven westwardly over and along a state highway near the town of Ellisville, in St. Louis county, Mo., when the automobile in which he was riding westward collided with one being driven eastward on said highway by one Fred Machetascheck.

The petition alleges negligence in the following particulars: (1) Negligence in operating and driving defendant's automobile at an unnecessary, fast, dangerous, and negligent rate of speed, (2) failing to exercise the highest degree of care to keep his said automobile as close to the right-hand side of the highway as practicable, (3) negligently failing to keep a lookout for persons and vehicles at the place of the collision, (4) negligently failing to have his automobile under such control that it could be readily and easily stopped upon the appearance of danger; the fifth assignment need not be referred to, because it was not included in the instructions given to the jury.

The answer was a general denial.

There was a verdict and judgment for plaintiff in the sum of $3,000, and defendant has appealed.

William H. Lerbs, Jr., a son of plaintiff, testified that at the time in question he was driving a Plymouth, four-door sedan, west on this state concrete highway running through St. Louis county, Mo. His wife and his father, the plaintiff, were in the front seat with him, and his mother and three children were in the rear seat. He was going westwardly at a speed of about twenty-five miles per hour as he was passing through Ellisville. The traffic toward St. Louis seemed to be very heavy, and he noticed a car darting in and out of the traffic. He was traveling on the north side of the road, and defendant's car darted from the south side of the road, then back into the north side, and then again out on the south side, and at that time witness' car was struck. When he saw defendant's car dart out of the traffic for the second time, he applied his brakes and tried to come to a standstill. He had almost brought his car to a stop when he was struck. At the time of the collision, he was on the north side of the road with the right-hand wheels at the edge of the north side of the concrete. This road runs approximately east and west. When the collision occurred, his father, the plaintiff, was thrown against the windshield, and then thrown out of the car onto the concrete. After the collision, plaintiff was lying on the concrete to the right of the car, and on his back.

The defendant was driving a Gardner, four-door sedan, and Harry Laboube was riding in the car with him.

After the collision, plaintiff was bleeding profusely at the head, and he was carried across the street to a restaurant, where Dr. Bartling and Dr. Dewhirst gave him first aid. After first aid was administered, plaintiff was taken in an ambulance to a hospital at Washington, Mo., where he remained ten days under the care of Dr. Bartling. After he returned home, he was under the care of Dr. Daugherty. Plaintiff's injuries were described as a cut from the right eye across the temple and side of the head for six and a half inches; a very deep wound, which required nine or ten clamps; and a gash across the rear of his head where he struck the concrete about five and a half inches long, which was not healed for several weeks after he got home.

The evidence discloses that plaintiff still requires attention. He also suffered a foot or ankle injury.

The accident occurred about 5 o'clock in the evening when it was getting dusk, and the lights were burning on both automobiles.

William H. Lerbs, Jr., further testified that, when defendant came out of the traffic for the second time, he was so near him he could not do anything. He stayed as near the north side of the road as he possibly could, and swerved his car slightly to the right.

Dr. Bartling testified that, when he first saw plaintiff, he had three scalp wounds, one above the eye, which ran back along the side of the head, six or seven inches in length. There was a small wound right above the eye about an inch long, and another on the back of his head. He stated he treated plaintiff after he went to the hospital at Washington, and that one of the wounds required ten skin clamps and the other two stitches. The wound on the back of the head was a torn one, and had to be guarded against infection. His bill amounted to around fifty or sixty dollars. He did not find any permanent injuries.

There is evidence that defendant's car was traveling at forty miles an hour, and defendant's car was entirely on the left side of the highway. Several witnesses testified that defendant's car was going about forty miles an hour.

Dr. Daugherty testified that he treated plaintiff after his return from the hospital, and dressed plaintiff's wounds. This doctor was permitted to testify that the injuries which plaintiff had received would aggravate his heart, which was affected. This testimony was objected to, on the ground that there was no allegation in the petition authorizing the admission of testimony showing that plaintiff's injuries would aggravate the condition of his heart. The allegation in the petition with respect to plaintiff's heart was "that his nervous system and his heart have been affected." We will refer to this later. Plaintiff was sixty-two years old.

Dr. Wolter, testifying on behalf of defendant, stated that he had examined plaintiff twenty days after the accident, and found on the right side of his head a scar about six inches long and one-eighth of an inch wide; also that there was a scab on the back of his head, indicating an unhealed wound about the size of a five-cent piece. There was no skull...