Litt v. Allen

• Decision Date: 06 May 1958
• Docket Number: No. 29789,29789
• Citation: 313 S.W.2d 183
• Parties: Leo LITT (Plaintiff), Appellant, v. Clarence ALLEN (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 183

313 S.W.2d 183

Leo LITT (Plaintiff), Appellant, v.Clarence ALLEN (Defendant), Respondent.

No. 29789.

St. Louis Court of Appeals, Missouri.

May 6, 1958.

Motion for Rehearing or for Transfer to Supreme Court Denied

June 5, 1958.

Morris A. Shenker, John E. Bardgett, Sidney M. Glazer, St. Louis, for appellant.

Frank B. Green, St. Louis, Lloyd E. Boas, St. Louis, of counsel, for respondent.

ANDERSON, Judge.

This is a negligence action instituted by plaintiff, Leo Litt, against Clarence Allen.In said suit plaintiff sought to recover damages for personal injuries sustained by him as a result of a collision between a truck, in which he was a passenger, and an automobile being operated by defendant.The trial resulted in a verdict and judgment in favor of defendant.Plaintiff has appealed.

The accident occurred on December 23, 1955, at the intersection of Purdue and Midland Avenues in University City, Missouri.Midland Avenue is a north-south street.It has six traffic lanes--three for northbound traffic and three for southbound traffic.In the center of Midland Avenue, separating the northbound traffic lanes from those for southbound traffic, is a parkway approximately 50 to 60 feet wide.The driveways on each side of this parkway are 30 feet wide.Purdue Avenue runs generally east and west, and intersects Midland Avenue.The separation of the parkway at this intersection was estimated to be from 50 to 75 feet.There is a stop sign for eastbound traffic on Purdue about 10 feet from Midland.There is no stop sign for southbound traffic on Midland.

The accident occurred about 7:30 a. m. Plaintiff was a passenger in a 1951 truck which was at the time being driven by Martin Abramovitz.Plaintiff and Abramovitz were partners doing business as Ace Waste Material Company.The truck belonged to the partnership.Joe Walinsky, an employee of the partnership, was also a passenger.All three were on their way to work.It was the regular procedure each morning for Abramovitz to call first for plaintiff and then pick up Walinsky, who lived on Purdue Avenue about a block from the scene of the accident.This was the procedure followed on the day of the accident.

The truck was eastbound on Purdue, and defendant's automobile was southbound on Midland.Plaintiff testified that Abramovitz stopped the truck at the stop sign, then proceeded into the intersection at a speed of about 5 miles per hour.He stated that when the truck reached the second southbound traffic lane, a car traveling 35 miles per hour darted in front of it.This car was in the southbound lane next to the parkway.The truck was at that time about a car's length from the parkway.Abramovitz made a sudden application of the brakes and brought the truck to a full stop.The truck was then about 35 feet past the stop sign.The sudden application of the brakes killed the motor of the truck.Abramovitz attempted to start the motor but was unsuccessful.The truck was stopped for about a half minute when it was struck by defendant's car.

Plaintiff saw defendant's car prior to the collision.At that time the truck was at the stop sign and defendant's car was about 50 feet from the intersection.Defendant did not sound the horn on his car or swerve in either direction prior to the collision.After the accident there were skid marks 30 feet long leading up to the truck.There were no other cars behind or to the side of the truck as it proceeded across the intersection.There was no other traffic alongside defendant as he proceeded toward the intersection.

Abramovitz testified that he stopped at the stop sign located on the west side of Midland, then headed across the intersection.He attained a speed of 7 to 10 miles per hour.When he reached a point 7 to 10 feet from the parkway, and when a little over halfway from the center of Midland, an automobile cut in front of him causing him to apply the brakes and kill the engine.The truck was stopped about thirty seconds when it was run into by defendant's car.During that time Abramovitz stated he was attempting to get the motor started, and while doing this he saw the defendant's car approaching.Defendant's car was about 75 feet away and traveling between 30 and 35 miles per hour.Defendant did not swerve or sound the horn on his car.The left front part of defendant's car struck the truck.

Ralph Tackes, a police officer, testified that the left side of the truck was damaged around the door, the running board, and in front of the rear wheel.

Joe Walinsky was called as a witness by plaintiff.His testimony was, in the main, similar to that given by plaintiff and Abramovitz.

Defendant testified as follows: His sister-in-law was riding with him as a passenger.There was no other traffic going south with him as he approached Purdue Avenue.When he was 30 feet from the intersection he saw the truck between the stop sign and the west curb of Midland.He watched the truck and observed that it kept moving and suddenly came to a stop.At that time he(defendant) was 'just about out of the intersection.'As soon as he saw the truck stopped he'hit the brakes,' but was not able to stop in time to avoid a collision.At the time he applied the brake his car slid to the left, and he'cut it to the right.'The front of his car came in contact with the left side of the truck.He stated that when the truck stopped it was about 30 feet in front of his car.He was going about 30 miles an hour at the time he saw the truck stop.

On cross-examination, defendant testified that when he first saw the truck it was about 30 or 35 feet from the north curb.He continued to watch, and when the truck stopped the front end of his car was just over the intersection.He stated that the streets were 'moist' that morning.Defendant further testified that when he saw the truck approach and enter the intersection he did not reduce his speed.He did not sound the horn when he saw Abramovitz going into the intersection.His car was traveling 10 or 15 miles an hour at the time of the collision.The brakes on his car were in good condition, having been repaired just prior to the accident.

Plaintiff submitted his case, in InstructionNo. 1, on charges of primary negligence (excessive speed and failure to swerve), instructing that if the jury found that the vehicle in which plaintiff was a passenger was caused to come to a sudden stop, and while stopped was struck and collided with by defendant's automobile and plaintiff was injured, and that 'defendant operated his said automobile at a rate of speed that was excessive under the circumstances and failed to swerve his said automobile to the right and was negligent, if you so find, and if you further find and believe that as a direct and proximate result of such negligence, if any, plaintiff was injured, then your verdict will be in favor of plaintiff and against defendant.'

The issue of contributory negligence was submitted in InstructionNo. 2, given at defendant's request.By it the jury was instructed: '* * * if you find and believe from the evidence that the driver of the truck, Martin Abramovitz, drove and operated said truck eastwardly into the southbound lane of Midland Boulevard and stopped said truck suddenly in the path of, and in close and dangerous proximity to, the automobile being driven by the defendant, if you so find, and if you further find that in so doing and in so stopping the driver of said truck was not exercising the highest degree of care in the operation of his motor vehicle and that such acts were negligence, if you so find, and that such negligence, if any, directly contributed to the plaintiff's injuries, if any, then in that event you should find that the plaintiff was guilty of contributory negligence and he cannot recover herein against the defendant, Clarence Allen, under Instruction 1, and your verdict must be for the defendant, and this is true even though you find that the defendant was also negligent under InstructionNo. 1.'

Appellant asserts the trial court erred in giving InstructionNo. 2 on behalf of defendant because 'it failed to require a causal connection between the negligence alleged and plaintiff's injuries.'In support of this contention, it is urged that the instruction submits two theories of contributory negligence, namely: (1) driving the truck into the southbound traffic lane; and (2) stopping suddenly in the path of and in close and dangerous proximity to defendant's automobile.From this premise, it is argued that the instruction is erroneous because it is not clear which charge the jury was required to find as a proximate cause of plaintiff's injuries.It is also contended that driving the truck into the southbound lane could only be a prior and remote cause and could not, under the circumstances, be considered as the proximate cause of the accident.

The fundamental fallacy in appellant's position is in the assumption that the instruction submits a double charge of negligence.There was no charge in the answer that Abramovitz was negligent by merely driving into the intersection, nor was there any such contention made during the trial.The gist of the defense was that Abramovitz was negligent in stopping the truck suddenly in the path of and in close and dangerous proximity to defendant's car.Juries, selected according to law, are presumed to have ordinary intelligence and common sense, and certainly a jury composed of reasonable men would not be likely to interpret the instruction as authorizing a...