Nehring v. Charles M. Monroe Stationery Co.

• Decision Date: 06 February 1917
• Docket Number: No. 14546.,14546.
• Citation: 191 S.W. 1054
• Parties: NEHRING v. CHARLES M. MONROE STATIONERY CO.
• Court: Missouri Court of Appeals

191 S.W. 1054

NEHRING v. CHARLES M. MONROE STATIONERY CO.

No. 14546.

St. Louis Court of Appeals. Missouri.

February 6, 1917.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by John Nehring against the Charles M. Monroe Stationery Company. From a judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded.

Rodgers & Koerner, of St. Louis, for appellant. Kelley & Starke, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff, a street sweeper, while engaged at his work upon the western portion of the roadway of the "Eads Bridge," spanning the Mississippi river at the city of St. Louis, or the western "approach" thereto, by reason of being struck by an automobile belonging to the defendant corporation and operated by an employé thereof. The trial below, before the court and a jury, resulted in a verdict and judgment for the defendant, and the case is here on plaintiff's appeal.

On March 25, 1913, at about 4:30 p. m., while plaintiff, with a colaborer, one Rogalski, was engaged in the work of sweeping and cleaning the roadway mentioned, he was struck by defendant's automobile, which was proceeding westwardly, driven by defendant's employé, whereby he sustained certain injuries. The roadway was 35 or 40 feet in width, and much used by automobiles and other vehicles, though it appears that no other vehicle was in the immediate vicinity at the time. Plaintiff was then about 63 years of age, in good health, with good sight and hearing.

The testimony of plaintiff and Rogalski is to the effect that while plaintiff was facing toward the west and engaged in his work, he was struck by the automobile moving westwardly along the roadway, that plaintiff did not step backward or in any direction immediately or shortly prior to being so struck, and that neither plaintiff nor Rogalski, who was within a few feet of him, heard any warning given by the driver of the automobile, by sounding the horn thereupon or otherwise.

Plaintiff called the driver of defendant's automobile as a witness. The driver testified that he saw plaintiff when about 50 feet from him, and thereupon sounded his horn, and that he again sounded the horn when about 15 feet from plaintiff; that at the latter time plaintiff was working with a shovel and facing to the southwest; that the automobile was proceeding at a speed of about four or five miles an hour, and that there was then room enough to enable it to pass between plaintiff and Rogalski; that plaintiff, when the automobile was about three or four feet from him, stepped backward directly in front thereof, and that the witness was then unable to stop the automobile in time to avoid striking plaintiff; and that the automobile ran only 3 or 4 feet after striking plaintiff.

A witness for defendant, who was upon this roadway at the time, testified that he heard the horn upon the automobile sounded four or five times as the machine approached plaintiff, and that immediately before plaintiff was struck plaintiff stepped backward in front of the automobile.

The court gave two instructions for plaintiff, one covering the case on plaintiff's theory of the facts, and the other on the measure of damages. These instructions need not be specially noticed.

For defendant the court gave eight instructions. The assignments of error before us relate to the giving of these instructions for defendant.

I. At the outset we may say that the contention of respondent that the trial court should have sustained respondent's demurrer to the evidence, and that therefore the alleged errors here complained of are not material, is without merit. The testimony of plaintiff and his witness Rogalski to the effect that plaintiff, while engaged in his work, and without any movement on his part, was struck from behind by defendant's automobile, in broad daylight, and injured, sufficed to establish a prima facie case for plaintiff. See Ostermeier v. Implement Co., 255 Mo. 128, 164 S. W. 218, and authorities there cited and discussed.

It is true that other evidence adduced tended to show that plaintiff, without looking for the...