McGrory v. Thurnau, 23257.
| Decision Date | 02 July 1935 |
| Docket Number | No. 23257.,23257. |
| Citation | 84 S.W.2d 147 |
| Parties | McGRORY v. THURNAU. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.
"Not to be published in State Reports."
Action by James McGrory against Ellen Bernice Thurnau, administratrix of the estate of Arnold Andrew Thurnau, deceased. From a judgment for the plaintiff, defendant appeals.
Reversed and remanded.
Fred H. Blades, Julian C. Jaeckel, and Allen, Moser & Marsalek, all of St. Louis, for appellant.
E. McD. Stevens, of Clayton, and George E. Mix, of St. Louis, for respondent.
This is an appeal from a judgment in favor of plaintiff and against defendant in an action for damages for personal injuries and property damage alleged to have resulted from a collision between an automobile operated by plaintiff and an automobile of defendant.
Plaintiff's amended petition, upon which the case was tried, alleges that the defendant carelessly and negligently stopped his automobile on the right side of a highway, more than one-half hour after sundown, "without any warning lights on the rear of his automobile" in violation of the law, and that by reason thereof the plaintiff was caused to drive his automobile into the rear of defendant's automobile, resulting in injuries to plaintiff and damage to plaintiff's automobile.
Defendant's answer contains a general denial and a plea of contributory negligence to the effect that whatever injuries and damages, if any, plaintiff sustained, were not due to any act of negligence on the part of the defendant, but were the direct and proximate result of plaintiff's own negligent acts: (1) In failing to have his automobile under such control that it could be readily stopped upon the first appearance of danger; (2) in failing to swerve his automobile to the right and onto the shoulder of said roadway so as to pass defendant's automobile without striking same; (3) in failing to have his brakes in proper working order so that they would operate and effectively stop his automobile upon the appearance of danger; (4) in failing to keep a lookout ahead when by the exercise of due care in looking he could have discovered defendant's automobile on the highway awaiting an opportunity to turn and could have avoided running into and striking same; and (5) the plea of the humanitarian doctrine.
Plaintiff's reply was a general denial.
It appears that on August 14, 1932, at about 8 o'clock in the evening, the defendant drove his automobile over Manchester road, known as United States highway 66, in St. Louis county, and at a point about one mile west of Ballwin and opposite and in the roadway in front of a filling station, restaurant, and tourist camp known as the Shell Station and Benish Restaurant, located at the north side of said road, he brought his automobile to a stop for the purpose of making a left turn across Manchester road and into the premises of the Benish Restaurant, and while so standing and awaiting an opportunity to cross through a break in the westbound traffic, defendant's automobile was run into from the rear by an automobile being driven by plaintiff, who was also traveling eastwardly along Manchester road. As the result of the collision, plaintiff was injured, and both automobiles were damaged.
Appellant's first assignment of error is that the trial court erred in overruling the demurrers to the evidence requested by defendant at the close of plaintiff's evidence and again at the close of the case. After a careful reading of the record before us, we have come to the conclusion that the point is without merit.
Plaintiff bases his right to recover solely upon the alleged violation by defendant of section 7778, Rev. Stat. of Mo. 1929 (Mo. St. Ann. § 7778, p. 5222), which requires a motor vehicle in operation on the highway at night to display a red light mounted at the back and directed to the rear, plainly visible for a distance of at least 500 feet, under normal atmospheric conditions, in the direction projected.
Plaintiff testified that he was driving eastwardly along Manchester road at a speed of about 15 miles per hour; that "it was a terribly dark night"; that the headlights of his automobile were burning, throwing a beam ahead of the car which would disclose an object on the roadway about 60 feet ahead; that his brakes were in good condition and at 15 miles per hour, under the conditions existing there, with safety to the automobile and the occupants, he could stop his automobile in 10 to 12 feet; that when he got to a point on the road approaching the east entrance to the Benish Restaurant he noticed an automobile right in front of him; that he put on his brakes, but his car ran into the rear of the automobile; that his automobile would have stopped within the next 4 or 5 feet. According to plaintiff, defendant's car was stopped and facing to the northeast with the front end across the center line of the highway, the front headed directly toward the driveway going into the restaurant. When asked about how close his car was to defendant's automobile when he saw it, he answered that he was "right on it," and gave it as his opinion that he was not farther than 6 feet away from the automobile when he first saw it, and when asked what prevented him from seeing this car in front of him on the road, he answered, "It never had no light on it."
On cross-examination, with reference to why he did not see defendant's car until he was within 6 feet of it, he stated that he could see down the road; that he could see past the car; that he did not see the car; that he saw the paved surface of the highway beyond the car, but that he did not see defendant's automobile.
Martin Sheffelbein, a witness for plaintiff, testified that he was a police officer and was called to the scene of the accident. He was asked:
We note here that defendant testified that the body of his automobile was dark green and the top was black.
Several witnesses testified that defendant's automobile came into a garage at Ballwin after the collision; that new bulbs were installed in the taillight and stoplight of his automobile; that the bracket which supported the frame in which these lights were placed was bent, but that the glass in the frame was not broken.
Arthur Motz, a witness for plaintiff, testified that he was the owner of the Ballwin Motor Company, and that he was called to the scene of the accident and towed plaintiff's car to his garage for repairs. He testified that he examined the bulbs of the stoplight and taillight of defendant's automobile. "I took them out and to my knowledge they were burned out."
On cross-examination this witness was asked whether defendant saw him testing the bulbs which he took out of the taillight and stoplight and he answered:
We quote the following from his redirect examination:
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