McPherson v. Premier Service Co.

Decision Date05 May 1931
Docket NumberNo. 21387.,21387.
Citation38 S.W.2d 277
PartiesMcPHERSON v. PREMIER SERVICE CO. et al.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Wm. H. Killoren, Judge.

"Not to be officially published."

Action by Lewis R. McPherson against the Premier Service Company, the Electric Vacuum Cleaner Company, and another, subsequently dismissed as to defendant last named. Judgment for plaintiff, and defendant first named appeals.

Affirmed.

S. P. McChesney and Woodward & Evans, all of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between his motorcycle and the defendants' automobile, occurring at the intersection of Vandeventer avenue and West Pine boulevard, in the city of St. Louis, on October 8, 1928. The cause was tried to a jury. Plaintiff at the trial voluntarily dismissed as to defendant Electric Vacuum Cleaner Company. There was a verdict in favor of plaintiff against defendants Premier Service Company and E. Elwood Smith for $7,500, and the Premier Service Company appeals.

The petition charges that the defendants negligently operated the automobile at a high, excessive, unreasonable, and dangerous rate of speed; that defendants negligently failed to sound or give any signal or warning of the approach of the automobile; that defendants negligently failed to have the automobile under such control that it could be readily and reasonably stopped upon the appearance of danger; that defendants negligently failed to keep a lookout, when defendants, by the exercise of the highest degree of care in so doing, would have discovered the motorcycle in time to have avoided the collision and injury to plaintiff; and that defendants saw, or by the exercise of the highest degree of care would have seen, the motorcycle with plaintiff thereon, in imminent peril, in time thereafter, by the exercise of the highest degree of care, to have avoided the collision.

The answer of the defendant Premier Service Company is a general denial, coupled with a plea of contributory negligence.

The evidence tends to show that, at the time of, and shortly before, the collision, the east and west traffic on West Pine boulevard had been temporarily suspended while the north and south traffic on Vandeventer avenue over the intersection was in progress. A number of cars going west over West Pine boulevard had halted at the east side of the intersection to await the clearance of the intersection by north and south traffic on Vandeventer. A northbound street car on Vandeventer was then near the south side of the intersection, and was proceeding northward over the intersection, and the westbound traffic had stopped to await the clearance of the intersection by the street car. As the street car proceeded north on Vandeventer, the plaintiff, who was a police officer, was traveling south on Vandeventer, and beyond the street car from the point of view of west-bound traffic stopped on the east side of the intersection. As the plaintiff on his motorcycle, traveling south, emerged from beyond the northbound street car, and when he was from ten to fifteen feet from the place of the collision, the defendant Smith, who was driving the automobile, not waiting, as the other westbound traffic did, until the intersection was clear, ran, at a rate of speed estimated by the witnesses at from twenty to twenty-five miles an hour, around the standing automobiles, and into and over the south side of the street, and into the intersection, and then swerved to the north so as to get into the line of westbound traffic, and, without checking the speed of the automobile, or giving any signal or warning, collided with the motorcycle. Plaintiff was traveling near the west curb line of Vandeventer, and the collision occurred at a point from three to six feet south of the center line of West Pine Boulevard.

Vandeventer avenue is thirty-six feet wide and West Pine boulevard is forty-five feet wide, from curb to curb.

Appellant assigns error upon the admission in evidence of an ordinance of the city of St. Louis, providing that the operator or driver of a vehicle shall have the right of way over the operator or driver of another vehicle approaching from the left on an intersecting street, and shall give the right of way to the operator or driver of a vehicle approaching from the right on an intersecting street. The objection made in the court below to the admission of this ordinance is put on the ground that the ordinance is not pleaded. We can see no error in the admission of the ordinance. The plaintiff's cause of action was not founded on the ordinance, and for this reason it was unnecessary to plead it. It was relevant and material, since it had a bearing on the issues made by the specifications of negligence set up in the petition, and also on the issue of contributory negligence. It was competent for plaintiff to introduce any evidence tending to show negligence on the part of the defendants, or want of negligence on his part, in the respects pleaded. It was neither essential nor proper for him to plead his evidence. Robertson v. Wabash R. Co., 84 Mo. 119; State ex rel. Pelligreen Const. Co. v. Reynolds, 279 Mo. 493, 214 S. W. 369; Bailey v. Kansas City, 189 Mo. 503, 87 S. W. 1182; St. Mary's Mill Co. v. Illinois Oil Co. (Mo. App.) 254 S. W. 735.

The court, on behalf of plaintiff, instructed the jury that, if defendant Smith, the driver of the automobile, saw, or by the exercise of the highest degree of care would have seen, plaintiff in a position of imminent peril, in time thereafter, by the exercise of the highest degree of care, to have so slackened the speed of the automobile, or swerved the same, or given warning of its approach, as thereby to have avoided striking the motorcycle, then the verdict should be in favor of plaintiff, even though plaintiff himself was guilty of negligence contributing to the collision. Appellant complains of this instruction on the ground that there was no evidence to show that the driver of the automobile could have avoided the collision by checking the speed of the automobile. This complaint is fully refuted by the record. There was evidence tending to show that, when plaintiff, traveling south near the west curb line of Vandeventer, at a speed of about ten miles per hour, came into view from beyond the street car, the automobile was approaching the intersection at a distance of about thirty-five feet from the point of collision. The defendant Smith testified that he was traveling at from twenty to twenty-five miles per hour, and could have stopped the automobile, with reasonable safety to himself, in a distance of twenty feet. Under the ordinance, considering the relative positions of the two vehicles at the time the motorcycle came into view from beyond the street car, plaintiff was entitled to the right of way. He had then come well into the intersection, and was only ten to fifteen feet from the place of the collision, which occurred three to six feet south of the center line of West Pine boulevard. There ought to be no question that the jury was entitled to say he was then in the danger zone, especially in view of the fact that he was then entitled to the right of way. Manifestly, the evidence made out a case for the jury as to whether or not defendant, in the exercise of the highest degree of care, could have avoided the collision by checking the speed of the automobile after the plaintiff came into the danger zone.

Appellant complains that the court below erred in permitting Dr. John W. Hotz, an expert witness, to testify that plaintiff's condition might be permanent. The ground of this complaint is that the testimony was not an opinion based upon a reasonable degree of certainty, but was merely speculative and conjectural. The doctrine as previously announced and followed, holding that an expert witness may not be permitted to say that in his opinion a given condition did result from a given cause, but was only permitted to say that it might or could result, was exploded by the decision in O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S. W. 55. The doctrine denounced in that case as unsound was the doctrine confining the expert to a statement that the condition might or could result. It is still permissible for the expert to say that the condition might or could result to show that what other evidence tends to prove is scientifically possible. Edmondson v. Hotels Statler, 306 Mo. 216, 267 S. W. 612; Meyers v. Wells (Mo. Sup.) 273 S W. 110; Cardinale v. Kemp, 309 Mo. 241, 274 S. W. 437; Kinchlow v. Kansas City, K. V. & W. Ry. Co. (Mo. Sup.) 264 S. W. 416; Cecil v. Wells, 214 Mo. App. 193, 259 S. W. 844; Crowley v. American Car & Foundry Co. (Mo. App.) 279 S. W. 212; Gallagher v. Schutte Lumber Co. (Mo. App.) 273 S. W. 213; Taylor v. Grand Ave. R. Co., 185 Mo. 239, 84 S. W. 873; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191; Maloney v. United Rys. Co. (Mo. Sup.) 237 S. W. 509; Deiner v. Sutermeister,...

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