Lord v. Austin

• Decision Date: 16 June 1931
• Docket Number: No. 21673.,21673.
• Citation: Lord v. Austin, 39 S.W.2d 575 (Mo. App. 1931)
• Parties: LORD v. AUSTIN et al.
• Court: Missouri Court of Appeals

39 S.W.2d 575

LORD v.AUSTIN et al.

No. 21673.

St. Louis Court of Appeals. Missouri.

June 16, 1931.

Appeal from Circuit Court, St. Louis County; Jerry Mulloy, Judge.

"Not to be officially published."

Action by Virginia C. Lord, by John K. Lord, Jr., her next friend, against James Austin and another.Judgment for plaintiff, and defendants appeal.

Affirmed.

Walter Wehrle, of Clayton, for appellants.

John K. Lord, Jr., and Kane & Kane, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff, Virgina C. Lord, in a collision between an automobile driven by her, and one owned by defendantJames Austin, and driven at the time by his son, defendantWilliam Austin.Plaintiff is a minor, and brings this action through John K. Lord, Jr., as her next friend.Upon a trial to a jury in the circuit court of St. Louis county, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $6,500; and following the overruling of their separate motions for a new trial, defendants have jointly appealed.

The accident occurred on September 9, 1929, at the intersection of Swan and Jefferson avenues, in the city of Webster Groves, Mo. Swan avenue runs east and west, while Jefferson avenue runs north and south; and it appears that some forty-eight feet back from the northwest corner of the intersection on Jefferson avenue, a "stop" sign had been erected, requiring drivers southwardly bound on Jefferson avenue to bring their vehicles to a complete stop before entering upon Swan avenue.From curb to curb, Jefferson avenue is twenty-one feet, and Swan avenue, twenty-three feet, in width; and at the point of their intersection, both streets are on a grade, the elevation on Swan avenue being to the west, and on Jefferson avenue to the north.

Plaintiff was driving westwardly on Swan avenue towards Jefferson avenue, in a Ford sedan, at a speed of twenty-five miles an hour, with her left wheels near the center of the street.She testified that when she came within fifty or sixty feet of the intersection, she sounded her horn and looked both to the right and to the left for traffic on Jefferson avenue, but seeing nothing, and hearing no warning signal, she continued onward with no reduction of speed, upon the assumption that any one approaching the intersection on Jefferson avenue would observe the requirements of the "stop" sign.As a matter of fact, defendantWilliam Austin was driving southwardly at the time on Jefferson avenue towards Swan avenue, in his father's Cadillac car; but plaintiff sought to excuse her failure to have seen him until she was within ten feet of him upon the ground that a tree and a dense growth of shrubbery, standing upon the northeast corner, obstructed her vision as she went west, though she said that one going south on Jefferson avenue could have seen through the obstruction.In addition, it appears that there were a number of automobiles closely parked along Jefferson avenue north of Swan avenue that afternoon, and undoubtedly this fact served in a measure to add to plaintiff's inability to discover the approach of the other car.

It was an admitted fact that Austin failed to stop for Jefferson avenue.Apparently both automobiles entered the intersection at about the same moment, but plaintiff continued on her course, figuring that Austin would stop for her to pass ahead of him, as he had time to do, and as she thought it was his duty to do, although she was aware that he had not stopped at the point called for by the "stop" sign.However, Austin, instead of stopping, came on at a speed of fifteen or twenty miles an hour, according to plaintiff's testimony, though he himself testified that his speed was only eight miles an hour; and, in the center of the intersection, the two machines collided, the Cadillac striking the Ford upon the right front fender with such violence that when the cars were stopped, the Ford was facing south on Jefferson avenue, with its rear end even with the south curb line of Swan avenue.

In view of the fact that no point is made about the sufficiency of the proof of defendants' negligence, it will suffice to say of the petition that it counted upon some four assignments of primary negligence, coupled with an assignment based upon the humanitarian doctrine.

The separate answer of defendantJames Austin was a general denial, while that of defendantWilliam Austin was a general denial, along with a plea of contributory negligence.

The reply does not appear of record, but it seems to have been in the conventional form.

The point first urged by defendants for a reversal is that the court erred in commenting, in the presence of the jury, on the opening statement made by counsel for defendants, and in reprimanding counsel in connection therewith.The record shows that defendants' counsel after calling the jury's attention to the fact that there were two defendants in the case, who were father and son, told them that he expected to prove that the father was not at home at the time of the accident, and that the son was driving his father's automobile without the latter's knowledge or consent.Plaintiff's counsel objected to the statement, on the rather vague ground that it was "not the law"; and in the colloquy which ensued between the court and both counsel, the court very properly refused to prejudge the question of the father's liability, and instructed defendants' counsel to state what he expected to prove.Counsel persisted in repeating the fact that the father was not at home at the time of the accident, until the court finally said: "That is the third time you have told the jury that the father was not at home."Thereupon counsel for defendants excepted to the comment and ruling of the court, and now argues at considerable length that the action of the court so prejudiced his case in the eyes of the jury as to prevent his clients from securing a fair and impartial trial.

To our minds he magnifies the incident too greatly.There is no doubt that the general manner and character of the opening statement of counsel was a matter reposing largely within the trial court's discretion.F. L. Dittmeier Real Estate Co. v. Southern Surety Co.(Mo. Sup.)289 S. W. 877.Here the evident purpose of the court's remark was to expedite the further course of the trial by expressing a disapproval of unnecessary repetition.The rulings of the court had consistently been in favor of defendants' counsel throughout the entire colloquy; the alleged objectionable remark was about as mildly put as could be imagined; and, so far as the record shows, it could not be fairly construed as having been uttered in disparagement of any defense interposed by the elder defendant.Under these circumstances, with no abuse of the court's discretionary power appearing, defendants' claim of error in this connection must be rejected.Ganz v. Metropolitan Street Ry. Co.(Mo. Sup.)220 S. W. 490;Stewart v. American Railway Express Co.(Mo. App.)18 S.W.(2d) 520;Banks v. Empire District Electric Co.(Mo. App.)4 S.W.(2d) 875;Cromeens v. Sovereign Camp, W. O. W.(Mo. App.)247 S. W. 1033.

Though there is no issue raised in regard to the sufficiency of the proof of their own negligence, defendants nevertheless argue that the demurrer to all the evidence should have been sustained, upon the ground that plaintiff was shown by her own evidence to have been guilty of contributory negligence as a matter of law.While we have no doubt that the facts and circumstances in the case were such as amply to have warranted the submission of the question of plaintiff's own negligence to the jury, we cannot believe that that dire result may be said to have appeared conclusively from her own evidence.In determining this question, the evidence, and the inferences deducible therefrom, must be viewed in the most favorable aspect to her.In justification of the course she followed, it may be pointed out that she sounded her own horn as she approached the intersection, but heard no signal from the other car so as to warn her of its presence in the neighborhood.Knowing of the location of the "stop" sign, in crossing the intersection she had the right to rely, as she said she did, upon the fact that any one approaching on Jefferson avenue would observe it; and even though, as she entered the intersection, she appreciated the fact that defendant had not stopped at the point called for by the sign, she nevertheless felt that because of it she had the right of way over him, and that he would yet stop for her to pass ahead of him, as she thought he had ample time to do.Furthermore, with her car going at the greater speed of the two, it is doubtful if it was within her power to have avoided the collision, after the imminence of her peril became known to her.These facts, we think, would justify reasonable minds in reaching different conclusions about the effect to be ascribed to her conduct; and consequently, the demurrer to all the evidence was properly overruled.Calhoon v. D. C. & E. Mining Co., 202 Mo. App. 564, 209 S. W. 318;Ehman v. Himeles(Mo. App.)243 S. W. 241;Westerman v. Brown Cab Co.(Mo. App.)270 S. W. 142.

Next, defendants assign error to the giving of instruction No. 1 for plaintiff.Incidentally, this was the only instruction given for plaintiff, her requested principal instruction on her theory of the case having been refused by the court.The...