Mueller v. Holekamp

• Decision Date: 05 February 1924
• Docket Number: No. 18390.,18390.
• Citation: 260 S.W. 118
• Parties: MUELLER v. HOLEKAMP.
• Court: Missouri Court of Appeals

260 S.W. 118

MUELLER v. HOLEKAMP.

No. 18390.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Rehearing Denied February 23, 1924.

Appeal from Circuit Court, St. Louis County; Gustave A. Wurdeman, Judge.

"Not to be officially published."

Action by Clarence Mueller, an infant, by Adolph Mueller, his next friend, against Fred Holekamp. Judgment for plaintiff, and defendant appeals. Affirmed.

Conrad Paeben, of St. Louis, and Ralph & Baxter, of Clayton (Albert Wiebe, of St. Louis, of counsel), for appellant.

Andrew H. Kiskaddon, of St. Louis, and Julius R. Nolte, of Clayton, for respondent.

SUTTON, C.

This is a suit for personal Injuries sustained by the plaintiff, Clarence Mueller, in an automobile collision, on December 30, 1920. Plaintiff was riding in a Ford coupé owned and operated by his uncle, George F. Heimburger. The collision occurred at the intersection of Kidder avenue and Rock Hill road, in St. Louis county. Kidder avenue runs north and south and Rock Hill road runs east and west. The width of Kidder avenue is about 30 feet; the width of the crown or traveled portion is 18 feet. The crown, which is made of cinders, extends to and joins the macadam crown of Rock Hill road. The grade of kidder avenue is slightly downward approaching Rock Hill road from the south. The width of Rock Hill road is about 30 feet; the width of the crown or traveled portion, which is made of macadam, is 17 feet. The grade of Rock Hill road is slightly upward approaching Kidder avenue from the west. An unmade portion of the road extends to each side of the macadam crown. The macadam crown extends through the intersection.

Plaintiff, Clarence Mueller, was riding in a Ford coupé, owned and operated by his uncle, George F. Heimburger, proceeding northward on Kidder avenue towards Rock Hill road. Defendant was driving a heavy Nash touring car, proceeding eastward on Rock Hill road towards Kidder avenue. The Ford coupe was occupied by George F. Heimburger, Mrs. Amelia Mueller, his sister, Mrs. Augusta Heimburger, his sister-in-law, and the plaintiff Clarence Mueller, his nephew.

George F. Heimburger testified that he was traveling northward on the right-hand side of the traveled portion of Kidder avenue, intending to turn into Rock"Hill road and go west; that as he approached Rock Hill road he was going at a rate of speed not over 6 miles an hour; that the car was in neutral, and the engine idling; that in the southwest corner of the intersection of Kidder avenue and Rock Hill road there was a farm house and a small stable which obstructed his view until he came almost to the intersection; that when he, got almost to the intersection he could see westward in Rock Hill road; that when he reached Rock Hill road he saw the defendant's machine approaching about 125 feet west of the intersection of the two roads; that after seeing the machine of the defendant approaching his machine traveled about 10 or 15 feet before the collision occurred; that when he saw defendant's car approaching it was traveling at a rapid rate of speed; that the left front wheel of defendant's machine struck his car at the left fender just in front of the rear wheel; that the cars, after striking, slapped together, the rear part of defendant's car slapping into the front part of his car; that his car at the time of the collision was to the right of the center line of Kidder avenue, and that he had not as yet started to make the turn; that the front of his car had not yet quite reached the center line of Rock Hill road; that his car when struck by defendant's car was knocked about 20 feet; that after the cars came to a stop his car was facing west in Rock Hill road on a slight angle about 20 feet from the point of contact, and defendant's car was facing east also on an angle, the two cars being clinched; that the defendant's car was going 40 miles and hour as it approached his car.

Mrs. Amelia Mueller testified that when she first saw defendant's car approaching the intersection it was a little more than 100 feet away, coming very fast; that Heimburger at the time of approaching the intersection was going very slow; that from the time that she first saw defendant's car until the time they were hit they had moved about 10 feet, something like that; that the force of the collision pushed Heimburger's car 20 feet on Rock Hill road; that after the collision the two cars were clinched; that when the Heimburger car got to the Rock Hill road she saw the defendant's car coming, and "just in a little flash it was all over;" that from the time she first saw defendant's car until the cars came together the Heimburger car moved 10 feet out into the Rock Hill road; that the front wheels were in the middle of Rock Hill road when the car was struck.

Mrs. Augusta Heimburger testified that Heimburger was going very slow upon approaching the intersection; that the front wheels of the defendant's machine struck the Heimburger car about the back fender; that the defendant came from the west on the Rock Hill road very fast; that when the collision occurred the Heimburger car was in Rock Hill road to the right of the center line of Kidder avenue.

Defendant testified that the surface of Rock Hill road was very slick and slippery; that as he approached Rock Hill road he was driving on the right side of the road, and noticed a Ford coupe on Kidder avenue, moving northward, at a distance of 40 feet from the intersection; that as he was approaching the intersection, and within a distance of 30 or 40 feet from the intersection, the Ford car started to make a near-side left turn into Rock Hill road, and that immediately, he (defendant) turned to the right as short as he could towards Kidder avenue; that on account of a culvert in Kidder avenue there was not sufficient room for his machine to get through, and it smashed into the left side of the Ford car; that as he approached the intersection, he was moving between 15 and 20 miles per hour, and slackened his speed as he approached the intersection, and that at the time the near-side turn was made by the other car he was going about 10 miles per hour; that he was about 75 feet from the intersection when he noticed the Heimburger car 40 feet back from the intersection; that on account of the slippery condition of the road he would not make an effort to stop suddenly, and could not state and did not know how many feet would be required in which to stop his car; that his car did not move over 3 or 4 inches after the impact of the collision; that he was thrown out of his car by force of the collision.

It was shown that the defendant in approaching the point of collision did not sound the horn on his car or give any other warning of his approach; that the horn of the Heimburger car was sounded as it approached the crossing; that the Heimburger car, coasting at 6 miles an hour approaching the crossing, could have been very easily stopped in a distance of 10 feet. It was also shown that as a result of the collision the Heimburger car was almost demolished; "that the wheels were smashed and the roof was smashed in, and the doors caved in; that the frame was bent in and the crank case smashed, the crank case and the connecting rods and the flywheel was turned in, smashed up against the flywheel so that the car could not be cranked; that the fenders were smashed, the wheels were broken, and the radiator mashed; that the floor boards were thrown out; that both glasses of the wind shield were broken, and the steering wheel was broken;" and that the car was otherwise damaged. It was shown that by force of the collision the plaintiff was thrown forward through the wind shield, his head being on the outside of the wind shield and the rest of his body on the inside; that when he was taken from the car his eye was closed and blood was gushing from it; that blood was flowing from a large gash in his neck; that he was taken to a hospital for surgical attention; that an operation was performed, and the eye removed; that at the time of the trial he was wearing a glass eye; that there was a permanent scar on his neck, resulting from the wound received in the accident; that he was 9 years old at the time he was injured.

The jury returned a verdict in favor of the plaintiff, and assessed the amount of his recovery at $10,000. A remittitur of $3,000 was made, and judgment was given for $7,-000. Defendant appeals.

The defendant complains of the following instruction given to the jury at the instance of the plaintiff:

"The court instructs the jury that, if you believe and find from the evidence that the defendant was operating an automobile upon and along the Rock Hill road. * * * approaching the intersection of Kidder avenue and Rock Hill road, * * * and that said defendant in so operating the automobile driven by him then and there negligently ran said automobile at a high, excessive, and reckless rate of speed, to wit, at about 30 or more miles per hour, or negligently failed or neglected to yield the right of way to the automobile in which plaintiff was riding at said intersection, if you find said automobile in which plaintiff was riding was approaching said intersection from the right of defendant's automobile, or if you find that upon approaching said intersection defendant's view was obstructed and said defendant negligently...