Nagle v. Alberter

• Decision Date: 04 October 1932
• Docket Number: No. 21924.,21924.
• Citation: 53 S.W.2d 289
• Parties: NAGLE v. ALBERTER.
• Court: Missouri Court of Appeals

53 S.W.2d 289

NAGLE v. ALBERTER.

No. 21924.

St. Louis Court of Appeals, Missouri.

October 4, 1932.

Rehearing Denied November 1, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by George J. Nagle against Irvin Alberter. Judgment for plaintiff, and defendant appeals.

Affirmed.

Cobbs & Logan, of St. Louis, for appellant.

Mark D. Eagleton, Frank P. Aschemeyer, and Rassieur, Kammerer & Rassieur, all 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 automobile, which he was driving, and defendant's motortruck, which was being driven by defendant's servant, at the intersection of Victor street and Jefferson avenue, in the city of St. Louis, on the night of July 11, 1927. The trial, with a jury, resulted in a verdict and judgment for plaintiff for $5,000, and defendant appeals.

Plaintiff submitted his case to the jury solely upon postulates of negligence arising under the humanitarian rule. Defendant assigns error here upon the refusal of his instruction in the nature of a demurrer to the evidence. He urges as grounds for this assignment (1) that the evidence was insufficient to make out a submissible case under the humanitarian rule, and (2) that the evidence shows that the servant operating defendant's truck was not at the time of the collision acting within the scope of his employment.

Plaintiff testified as follows: "On the evening of July 11, 1927, about 9:30, I was injured in a collision at Jefferson Avenue and Victor Street. I was returning to my home from the home of my daughter, and was driving a Chevrolet touring car west on Victor Street. As I approached Jefferson Avenue from the east my car was about five or six feet from the right-hand or north curb of Victor Street. I stopped at the east curb of Jefferson Avenue to wait for some automobiles going north on the east side of Jefferson Avenue. There are two street car tracks on Jefferson Avenue, one for northbound cars and one for southbound cars, and the space occupied by the tracks is approximately fifteen feet wide. The tracks are in the center of Jefferson Avenue. The space between the rails of each track is approximately five feet, and the space between the two tracks is approximately five feet, making fifteen feet altogether. After the northbound automobiles passed in front of me on Jefferson Avenue, I proceeded west on Victor Street, and when the front end of my car reached the west rail of the northbound street car track I looked north and saw for the first time a truck coming south on Jefferson Avenue straddling the west rail of the southbound street car track. The truck was then about 125 feet north of me. I could not tell the then speed of the truck. I continued west on Victor all the time watching the truck as it approached me. When I was seven or eight feet past the west rail of the northbound track I particularly noticed that the truck was about 40 or 50 feet north of me. I was then moving at the rate of seven or eight miles an hour, and seeing this truck that close to me, I stepped on the gas to increase my speed. When the front of my car was about seven or eight feet west of the west rail of the southbound street car track, the truck collided with my car. The right front wheel of the truck struck the center of my running board on the right-hand side of my car, and the left front wheel of the truck struck the right rear end of my car. I was knocked unconscious, and did not recover consciousness until the following Thursday, when I found I was down in the City Hospital. The collision occurred on Monday. I saw no other vehicles at the intersection at the time of the accident, except my car and the truck. I crossed Jefferson Avenue at about the same relative distance from the north curb of Victor Street as I was when approaching Jefferson on Victor. Jefferson Avenue at Victor Street is about 80 or 90 feet wide from curb to curb. When the front of my automobile was at the west rail of the northbound track, I looked north for the first time. I did not see any other southbound automobile on Jefferson Avenue except this truck. I saw no other automobile coming south on Jefferson Avenue at the time I saw the truck 125 feet north of me. When I saw the truck coming south about 125 feet away from me, the front end of my automobile was about at the west rail of the northbound track. I drove about seven or eight feet after I passed the west rail of the northbound track before I noticed the truck particularly again. The truck was then about 40 or 50 feet away. I did not make any attempt whatever to get Comstock (the driver of the truck) to testify that he was delivering bundles for defendant at the time this accident happened. He made that statement himself."

Corbitt Cooper testified, for plaintiff, as follows: "I saw the collision that occurred at Jefferson and Victor. I was driving south on Jefferson Avenue. I saw the truck before the collision with the Chevrolet. The truck was southbound on Jefferson and the Chevrolet was westbound on Victor. The truck passed me going south on Jefferson about the middle of the block north of Victor. When the truck passed me, I judge it was going about 35 miles an hour. I did not see it slow down at any time before the collision. It did not swerve at any time before the collision that I could see. After the collision the truck kept on going. The Chevrolet truned around and turned up. I don't know whether it turned over or not. It swerved over into the corner post there on the southwest corner of Victor and Jefferson."

Carl Nusslein, a police officer, testified, for plaintiff, as follows: "On July 11, 1927, I was called to the scene of this accident. I inquired around about the accident from some of the neighbors there. I went to defendant's garage at 2638 Lynch Street, and I found a particular truck, the one driven by Comstock. I noticed two or three bundles in it. I went there by myself. I got through an open window. I saw the damaged truck, and I figured it must be the truck that had the accident. I was looking for a truck with a certain license number, and I found the truck with that number, I looked into the truck and saw therein these bundles or packages, but I did not do anything with them. The truck was a Dodge, closed body, butcher truck. I was looking for a car that had been in the accident, and that truck had been smashed."

The defendant testified as follows: "About April 1 or 2, 1927, I entered the parcel delivery business. On July 11, 1927, I had in my employ a young man by the name of Fred Comstock. His duties at first were to hop bundles and drive occasionally. Later I made a driver out of him. On July 11, 1927, and for some weeks prior thereto he had been driving a three-quarter ton Dodge truck. We operate five trucks at the present time, and each morning the five trucks go downtown to pick up bundles at different stores, and at about eleven o'clock are due back in the garage, and we then assort these packages according to districts. We call one `Far South,' another `West,' another `North,' another `Short West,' another `Downtown.' About noon each day, we start to deliver these packages. Comstock was assigned to the district known as the `Short West,' namely from Race Course Avenue, Vandeventer and Tower Grove, north to Delmar Avenue, no further west than Kingshighway and no further east than Grand Avenue. On the day in question Comstock had made one trip and returned to the office about two o'clock to make some more pickups, and then back in the office about 3:30 or 4 o'clock. He left our garage on July 11, 1927, for the last time about 4:30 p. m. About noon or one o'clock on that day when he left for his first trip he spoke to me about using the truck. I told him I would let him know before he left on his second trip. He asked me if he could use the truck to haul some of his sister's clothing, or trunk, or a couple of suit cases, or something like that. I think he was living with his sister at the time. I don't know her exact address, but I believe it was between Sarah and Whittier on Delmar. She was moving something on North Vendeventer, about 1100. These two points are only about four blocks apart. Before Comstock left the garage for the last time that day he spoke to me again about using the truck. I told him he could use it, provided he would have it in in due time. He said he would have the truck back early, but I don't know if the time was mentioned or not. A man by the name of Junge was Comstock's helper, and left our garage with Comstock about 4:30 that afternoon, and they did not have any packages on the truck for any portion of the city except the territory which I have described as the `Short West' run. About five or six o'clock that evening, Junge came back to our house, bringing with him some money for the C. O. D. packages. About two o'clock the next morning I learned for the first time that an accident had happened. The police came to my front door and rang the door bell. At the time this accident occurred, I was garaging my trucks at 2638 Lynch Street. When I gave Comstock permission to use the truck I told him he might use it provided he brought it back in due time. I did not specify what route he should take or should not take. The only time my trucks are out as late as nine o'clock at night is during the busy season, such as a week or so before Easter and a week or so before Christmas. The number of bundles the driver has to deliver, of course, will determine what time he will get back to the garage. Compton Avenue and Grand Avenue are traffic avenues west of Jefferson. They run north and south. Compton Avenue is 3200 west, Grand Avenue is 3600 west, and Jefferson is 2600 west. I personally use Jefferson Avenue a lot in going various places. It is considered a very good street as far north as Market, because...