Minnis v. William J. Lemp Brewing Co.

• Citation: 226 S.W. 999
• Decision Date: 04 January 1921
• Docket Number: No. 16314.,16314.
• Parties: MONNIS v. WILLIAM J. LEMP BREWING CO.
• Court: Missouri Court of Appeals

226 S.W. 999

MONNIS v. WILLIAM J. LEMP BREWING CO.

No. 16314.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by Ernest Minnis against the William J. Lemp Brewing Company. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellant.

James A. Ryan and Kinealy & Kinealy, all of St. Louis, for respondent.

BIGGS, C.

On March 20, 1917, defendant's Packard truck driven by its employee ran into a Ford truck operated by plaintiff on the east side of Nebraska avenue about pie center of Utah street, in the city of St. Louis, resulting in personal injuries to plaintiff. Hence this action for damages alleged to have been caused by defendant's negligence. After a verdict and judgment for plaintiff, defendant appeals, alleging that the evidence convicted plaintiff of contributory negligence as a matter of law, and hence the court erred in failing to sustain its demurrer to the evidence. Error is also assigned in the giving of an instruction for plaintiff.

As to plaintiff's contributory negligence: Defendant relies upon plaintiff's version of his conduct at the time to establish his contributory negligence as a matter of law. Nebraska avenue runs north and south, and Utah street east and west. At the time plaintiff was driving north on Nebraska avenue with the east side of his truck about 8 feet west of the curb, at the rate of 8 or 10 miles an hour. As he approached the southeast corner of Nebraska avenue and Utah street plaintiff slowed up, looked west, and saw defendant's truck coming down Utah street on a down grade from the west. At that time defendant's truck was about 35 feet west of Nebraska avenue and traveling, according to plaintiff, in the center of Utah street, and at the rate of 15 or 20 miles an hour. Whereupon plaintiff started on across Utah street, and when in about the center of that street he saw the defendant's truck was about 18 feet west of him and had not slackened its speed, he thereupon attempted to avoid a collision by increasing the speed of his truck and changing his direction, but was too late, as the north wheel of defendant's truck struck the plaintiff's car just behind the driver's seat.

It appeared from `plaintiff's evidence that Nebraska avenue was about 60 feet wide from building line to building line. At the time plaintiff first saw defendant's truck he was 8 feet west of the east curb of Nebraska avenue and the truck was 35 feet west of the west building line of Nebraska avenue, which would place defendant's truck at that time about 70 feet west of plaintiff's truck when plaintiff started across Utah street.

On cross-examination plaintiff said he was going 6 or 8 miles an hour as he was crossing Utah street, and that at that rate his Ford truck could be stopped immediately or within a foot or 2 feet. He further testified on cross-examination that he kept his eye on the truck all the time, and that it kept coming down Utah street at the same rate of speed, and did not change its direction at any time. "

Defendant contends that in the light of this testimony, plaintiff being capable at all times of stopping his machine, and the plaintiff having admitted that he saw the truck coming down the hill at the rate of 15 or 20 miles an hour without stopping or turning aside, he was guilty of contributory negligence as a matter of law in not stopping and allowing defendant's truck to pass by.

We must view plaintiff's evidence in the light most favorable to him In passing upon the question, and the plaintiff cannot be convicted of contributory negligence as a matter of law unless the evidence is such as to show negligence on his part beyond an inference to the contrary. Or, as it so often stated, if reasonable minds might well differ as to the question of plaintiff's negligence, then the matter is one for the jury.

The evidence in the present case, which we must accept as true in passing upon the question, is to the effect that the plaintiff's truck arrived at the intersection of these two streets when the defendant's truck was 70 feet west of the plaintiff's truck and 35 feet west of the west line of Nebraska avenue. While it is true that plaintiff admits that when he first saw the truck, and afterwards when looking at it, it was coming down towards him at the rate of 15 or 20 miles an hour, still we think he had a right to assume that he was entitled to the crossing first, and that the driver of defendant's truck would perform his duty, and, even though he was going at the rate of 15 or 20 miles an hour, that he would slacken the speed of his truck or change its direction so as to avoid striking the plaintiff.

In the absence of laws or ordinances regulating the matter, two travelers have equal rights at a street intersection, and the one first at the crossing is entitled to the right of way, and he may proceed across, though he sees the other vehicle approaching, unless the other is so close to him or is coming at such a highly dangerous rate of speed that a collision should be anticipated. While it is true in the present case that the plaintiff observed defendant's truck all the time coming at the rate of 15 or 20 miles an hour, we think the plaintiff was entitled to assume that the truck at that rate could be stopped before a collision would occur, and that the defendant would slacken the speed or...