Luck v. Pemberton
| Decision Date | 13 June 1930 |
| Docket Number | No. 21183.,21183. |
| Citation | 29 S.W.2d 197 |
| Parties | LUCK v. PEMBERTON. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James F. Green, Judge.
"Not to be officially published."
Action by Hazel Luck against Ben Pemberton. Judgment for plaintiff, and defendant appeals.
Affirmed.
Wilbur C. Schwartz, of St. Louis, for appellant.
Fred Berthold and Emery W. Chase, both of St. Louis, for respondent.
This is an action for personal injuries. Upon the trial, with a jury, plaintiff recovered a judgment for $2,500, and defendant appeals.
On January 30, 1928, at about 12:30 in the afternoon, plaintiff was a passenger on a north-bound street car on Florissant boulevard, in the city of Ferguson. The car stopped at the intersection of Tiffin avenue and Florissant boulevard for the purpose of discharging passengers. After alighting from the rear end of the street car plaintiff was walking from the car to the east curb of Florissant boulevard, when she was struck and injured by defendant's automobile, which was being driven by defendant northwardly on Florissant boulevard. At the time plaintiff was struck the street car was standing still, because there was another passenger paying fare before alighting at that point.
Plaintiff testified that as she was alighting from the rear end of the street car she looked south, and saw the approaching automobile about fifty to seventy-five feet away; that after she alighted from the street car she walked east; that when she was about three feet from the curb defendant's automobile struck her; that the defendant did not sound his horn or give any other warning signal.
Plaintiff's testimony was corroborated by the testimony of a number of other witnesses.
The conductor of the street car testified that he saw plaintiff alight from the rear end of his car, and at the time saw the automobile approaching from the south; that when plaintiff stepped down into the street the automobile was about seventy-five or eighty feet south of the rear end of the street car; that the speed of the automobile was approximately fifteen to twenty miles per hour; that when plaintiff was walking toward the east curb defendant did not diminish the speed of his automobile at any time before striking plaintiff, nor change its course to right or left; that he did not at any time sound a warning signal; that the impact of the automobile against plaintiff's body threw her a distance of about ten feet; that the street was paved with concrete, and was dry; that the distance from the street car track to the east curb was at that point about twelve to fourteen feet.
Defendant complains of instruction No. 4, given at the instance of plaintiff, which, omitting unessential verbiage, is as follows:
"The Court instructs the jury that if you believe and find from the evidence that defendant saw, or by the exercise of the highest degree of care could have seen that plaintiff was in a position of imminent peril and danger of being struck and injured by defendant's automobile, and find that defendant in time thereafter, by the exercise of the highest degree of care and with the means and appliances at hand on his automobile and with safety to himself and his automobile, could have sounded a signal warning of the approach of his automobile, or to have stopped same, or to have diminished the speed of same, or to have diverted the course of same, and that the defendant could thereby have avoided striking and injuring plaintiff, then plaintiff is entitled to recover and your verdict must be for the plaintiff and against the defendant, notwithstanding you may further believe and find from the evidence that plaintiff was not exercising ordinary care for her own safety."
Defendant complains of this instruction on the ground that it requires of defendant the exercise of...
To continue reading
Request your trial
-
Welch v. McNeely
...Carle v. Akin, Mo., 87 S.W.2d 406, 409(2); Larey v. Missouri-Kansas-Texas R. Co., 333 Mo. 949, 64 S.W.2d 681, 684(3); Luck v. Pemberton, Mo.App., 29 S.W.2d 197, 198(4). Plaintiff's contention that Instruction 3 was 'unsupported by any evidence and was totally unwarranted under the evidence'......
-
Kaley v. Huntley
...Hogan v. Pub. Serv. Co., 19 S.W.2d 707; Wright v. Quattrochi, 49 S.W.2d 3; Gude v. Weick Bros. Undertaking Co., 16 S.W.2d 59; Luck v. Pemberton, 29 S.W.2d 197; Roark v. Stone, 30 S.W.2d 647; Stewart Jeffries, 34 S.W.2d 560; McCloskey v. Renne, 37 S.W.2d 950; Woods v. Moffitt, 38 S.W.2d 525;......
-
Smithers v. Barker
... ... 1043; Hoodenpyle v. Wells, 10 S.W.2d 332; ... Silliman v. Munger Laundry Co., 44 S.W.2d 159; ... Reichers v. Meyers, 28 S.W.2d 405; Luck v ... Pemberton, 29 S.W.2d 197; Banks v. Empire Dist. El ... Co., 4 S.W.2d 875; Greer v. Springfield Creamery ... Co., 240 S.W. 833; ... ...
-
Ridge v. Jones
... ... "impending." See instructions approved in ... Montague v. Ry. Co., 264 S.W. 813; Erxleben v ... Kaster, 21 S.W.2d 195; Luck v. Pemberton, 29 ... S.W.2d 197. (3) There was no evidence that the negligent ... driver was the agent or servant of plaintiff. Sweetman v ... ...