McKinney v. Bissel

• Decision Date: 06 June 1924
• Docket Number: No. 18293.,18293.
• Citation: 263 S.W. 533
• Parties: McKINNEY v. BISSEL.
• Court: Missouri Court of Appeals

263 S.W. 533

McKINNEY v. BISSEL.

No. 18293.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

I. Municipal corporations 706(6)—Whether automobile striking pedestrian was operated by defendant held for jury.

Evidence held sufficient as against demurrer to show that automobile which struck plaintiff pedestrian was owned and operated by defendant.

2. Municipal corporations 706(6)—Slight evidence showing defendant was operating automobile sufficient for jury.

Slight evidence that defendant was operating an automobile injuring another is sufficient for jury where it is not combated except by a general denial, and there is no intimation that defendant resists plaintiff's claim on the ground that defendant was not the operator.

3. Municipal corporations 706(8)—instruclion requiring plaintiff to exercise ordinary care held not reversible error.

In pedestrian's action for injuries when struck by defendant's automobile, instruction merely requiring plaintiff's exercise of "reasonable and ordinary care for her own safety," objected to as too general and too easily misunderstood, held not reversible error, not being unusual in its facts.

4. Municipai corporations 706(8)—Instruction as to speed of automobile held not erroneous as not confining jury to issue.

In pedestrian's action for injuries when struck by defendant's automobile, instruction

permitting a recovery if defendant operated automobile at an unreasonable rate of speed was not erroneous because using word "unreasonable," while petition used word "dangerous," on the ground that jury was not confined to acts of negligence pleaded in petition.

5. Municipal corporations 706 (6).—Whether failure to ware pedestrian of approaching automobile caused injury held for jury.

If view which a pedestrian had of an approaching automobile did not afford her timely notice of its approach, or if the sounding of a signal would have given her additional information that car was near at hand and coming at a rapid rate of speed, then whether such failure to warn was cause of plaintiff's injury was for the jury.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Rose C. McKinney against Jesse W. Bissel. Judgment for plaintiff, and defendant appeals. Affirmed.

C. J. Krueger and Coffman & Jackson, all of St. Louis, for appellant.

Foristel & Eagleton, Harvey B. Cox, and Everett Hullverson, all of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries sustained by plaintiff on the 11th day of September, 1921, when she was run down and injured by an automobile operated by the defendant on Manchester avenue, at Billon street, in the city of St. Louis.

There were several assignments of negligence in the petition, but the case went to the jury upon only two of these assignments: First, excessive speed, wherein the petition alleged that the automobile was operated at a high, excessive, and dangerous rate of speed under the circumstances; second, failure to give any signal or warning of the approach of said automobile.

The answer was a general denial, coupled with a plea of contributory negligence, wherein defendant alleged that, at the time and place of the injury, plaintiff ran across Manchester avenue without looking or listening for automobiles, when by looking she could have seen, and by listening she could have heard, the approach of the automobile.

The evidence discloses that on the 11th day of September, 1921, plaintiff, in company with her husband, her husband's mother, and a Mr. Beins, were traveling east on Manchester avenue in Mr. Beins' automobile when some engine trouble developed, and it became necessary to pull over to the north or left-hand curb of Manchester avenue near where it is intersected by Billon street. Manchester avenue, at the place where the accident occurred, runs east and west, and Billon street north and south. There are two street car tracks on Manchester avenue, one for the east-bound cars, and one for the westbound, and both of these car tracks are located on the south side of Manchester avenue, the north side of Manchester avenue being used for automobile and other traffic, both east and west—the east-bound traffic moving on the south side and the west-bound traffic on the north side of that part of Manchester avenue so used for automobile and other vehicular traffic. Manchester avenue is 60 or 70 feet wide at this point. About one-third of the width of the street was used for the street car tracks, and the other two-thirds for other traffic. When Mr. Beins had driven his automobile over near the north curb of Manchester avenue a brief examination revealed that it would be impossible to fix the automobile so that they might continue on. their journey. Plaintiff and the other occupants of the automobile were then out of the car and standing near it. Plaintiff observed a street car approaching from the west, and a block or more away. She suggested to her husband and his mother that they' try to get this street car so that they might continue on their journey home. Plaintiff was then standing near the north side of Manchester avenue, across the street from where the regular street car stop was, and about 40 to 60 feet east of this car stop. Before crossing Manchester avenue plaintiff looked in both directions, and to the west she saw the street car coming, and to the east she observed a dim light which she thought was a considerable...