Nichols v. Schleusner

• Citation: 59 S.W.2d 708,227 Mo.App. 1106
• Parties: HELEN NICHOLS, RESPONDENT, v. R. A. SCHLEUSNER AND KYRL BOLDT, APPELLANTS
• Decision Date: 02 May 1933
• Court: Court of Appeal of Missouri (US)

59 S.W.2d 708

227 Mo.App. 1106

HELEN NICHOLS, RESPONDENT, v. R. A. SCHLEUSNER AND KYRL BOLDT, APPELLANTS

Court of Appeals of Missouri, St. Louis

May 2, 1933

Appeal from the Circuit Court of St. Louis County.--Hon. Jerry Mulloy, Judge.

AFFIRMED.

Judgment affirmed.

Walter Wehrle for appellants.

(1) Instruction No. 2, given on behalf of plaintiff, is erroneous, because the effect of this instruction was to direct a verdict for the plaintiff if the driver of the automobile in which plaintiff was riding had the right of way, regardless of whether he was negligent in approaching the intersection or in failing to give warning of his approach, or in failing to exercise care after the danger of collision was apparent. Brooks v. Menaugh, 284 S.W 803; Brooks v. Menaugh, 10 S.W.2d 327; Stakelback v. Neff, 13 S.W.2d 573. (2) Instruction No. 1 is erroneous, in that it authorized a verdict for plaintiff if the collision was due to the negligence of the defendant, notwithstanding any negligence of which Marie Francis might have been guilty. Brooks v. Menaugh, 284 S.W 805.

Otto F Karbe and Albert E. Hausman for respondent.

(1) Where an injury is proximately caused by the concurring negligent acts or omissions of two or more persons acting independently, all such persons are liable therefor, and the injured party may recover of either, or both. Carr v. Auto Supply Co., 293 Mo. 562; Bradley v. Becker, 321 Mo. 405, 413. (2) Plaintiff, Helen Nichols, a passenger in the Marie Francis automobile, may recover against defendants if injured by the joint or concurring negligence of the driver of the automobile in which she was riding and the negligence of the defendants' chauffeur. Bradley v. Becker, 321 Mo. 405; Carr v. Auto Supply Co., 293 Mo. 562. (3) Instruction No. 2 is correct. It declares that if the automobile in which plaintiff was riding as a passenger entered the intersection of North and South Road and Gannon Avenue prior to the time defendants' automobile truck entered said intersection, then it was the duty of the defendant to give the Francis automobile the right of way. Sec. 7777, Clause I, R. S. Mo. 1929; 1 Berry on Automobiles (6 Ed.), p. 884, sec. 1045; Boyd v. Close, 82 Colo. 150; Greilich v. Weinshank, 64 Cal.App. 474; Allen v. Purvis, 30 S.W.2d 196.

McCULLEN, J. Becker, P. J., and Kane, J., concur.

OPINION

McCULLEN, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff (respondent) as the result of a collision of two automobiles, in one of which plaintiff was riding as a guest. A trial before the court and a jury resulted in a verdict and judgment for plaintiff and against both defendants (appellants) in the sum of $ 2500. Defendants bring the case to this court by appeal.

Defendants contend that plaintiff's instructions numbered 1 and 2, given by the court, were erroneous.

One of the assignments of negligence in the petition charged in substance, that on September 6, 1930, plaintiff was a passenger or guest in an automobile which was being driven west on Gannon Avenue, at its intersection with the North and South Road, both public highways in the County of St. Louis, Missouri, and that defendants' servant drove defendants' automobile at a rate of speed which was high, negligent and dangerous under the circumstances, thereby causing defendants' automobile to strike the automobile in which plaintiff was riding.

Another assignment alleged in substance, that as the automobile in which plaintiff was riding was being driven westwardly in Gannon Avenue, it came to and entered the intersection of North and South Road prior to the time that defendants' automobile entered said intersection, and that defendants' servant carelessly and negligently failed to permit the automobile in which plaintiff was riding, to have the right of way across said intersection, and carelessly and negligently caused defendants' automobile to strike the automobile in which plaintiff was riding.

There were averments in the petition charging that the alleged negligence of defendants directly caused the automobile in which plaintiff was riding, to be overturned, whereby plaintiff was injured.

Defendants filed a joint and separate amended answer, containing a general denial, coupled with allegations charging plaintiff with contributory negligence in allowing herself to be conveyed in an automobile driven at a high and reckless rate of speed into the intersection mentioned, and in permitting herself to be conveyed in an automobile that failed to stop before entering the intersection, and which suddenly entered said intersection without the driver thereof sounding a horn or giving any warning. The amended answer further alleged that plaintiff's injuries, if any, were caused solely, directly and proximately by the negligence of Marie Francis, the driver of the car in which plaintiff was riding, in operating her automobile at a high and dangerous rate of speed, failing to obey the stop sign on Gannon Avenue, and by entering the intersection at an excessive rate of speed without sounding her horn or giving any other warning.

The evidence for plaintiff tended to show that plaintiff was riding in a four passenger closed Studebaker automobile (hereinafter called Francis automobile) driven by Mrs. Marie Francis, at about five o'clock in the afternoon of September 6, 1930. As the Francis automobile, going westwardly in Gannon Avenue, approached the North and South Road, it was moving at a rate of about eight or ten miles an hour. Plaintiff was seated beside Mrs. Francis. Plaintiff looked to the north and south to see if an automobile was coming in either direction. She said she could see a distance of 175 to 200 feet. She saw no car coming from the north at that time. The Francis automobile then started across the North and South Road, and when plaintiff looked again she saw an automobile approaching, which was then about seventy-five feet to the north. The Francis automobile was at that time in the center of the North and South Road on Gannon Avenue. Plaintiff said to Mrs. Francis, "Look out, he is going to hit us;" and Mrs. Francis put on more speed to get out of the way. The Francis automobile, according to plaintiff's testimony, was across the intersection when defendants' automobile struck it on the rear fender, causing it to swerve and finally turn over on its left side about forty feet west of the intersection. There was no stop sign on Gannon Avenue at the intersection on the day of the accident, according to the testimony of plaintiff and another witness, although it appears from other testimony that a stop sign was put up at that place after the accident.

Mrs. Marie Francis, the driver of the automobile in which plaintiff was riding at the time of the collision, testified that as the Francis automobile approached the intersection it was going about eight miles an hour. When she was at the intersection, Mrs. Francis looked to the right and to the left. She could see about a block to the north. She did not see anything and proceeded across. She looked north again when she was about midway across the black line in the center of the North and South Road, and saw defendants' automobile approaching from the north about seventy feet away, moving at the rate of about forty-five miles per hour. The Francis automobile at this time, she said, was going not over ten miles per hour. She said she could have stopped her automobile within six feet after she first saw defendants' automobile, but that if she had stopped then, she would have been directly in line of the approaching car. She testified that the right rear part of her automobile was struck by defendant's automobile. Her car swerved to the left, turned around and went over on its left side, facing east. Defendants' automobile, she said, stopped about 125 or 150 feet south of the intersection after the collision. Mrs. Francis said she did not swerve her automobile nor apply her brakes. When she saw defendants' automobile seventy-five feet away, she stepped on the gas and tried to get out of the way.

The evidence showed that Gannon Avenue, and North and South Road, are concrete paved streets. Gannon Avenue is eighteen to twenty feet wide and runs east and west. Approaching the North and South Road from the east there is a slight down grade on Gannon Avenue, while the North and South Road is almost level. North and South Road is twenty feet wide and runs north and south.

Edward Corner, driver of defendants' automobile, a chevrolet delivery truck, testified that he was employed by defendants as a chauffeur to call for and deliver clothing, defendants being engaged in the cleaning and dyeing business. On the day mentioned he had made some deliveries and was returning to the store of defendants when the collision occurred. He entered the North and South Road one mile north of Gannon Avenue, driving southwardly on the right side thereof, and when he first saw the Francis automobile he was ten or twelve feet north of the north line of Gannon Avenue. There was not traffic ahead of him proceeding southwardly. He testified that he was driving about forty miles an hour. As he neared Gannon Avenue, he saw the Francis automobile proceeding west on Gannon Avenue, traveling about thirty-five or forty miles an hour. When he first saw the Francis automobile, it was about ten or twelve feet from the corner. He said it did not stop, slow down or sound any horn, and when he saw it was not going to stop, he swerved to the left to go in back of it and applied his brakes. There were no buildings on the east side of the North and South Road north of Gannon Avenue. He could not remember his exact position when he first looked to see whether or not an automobile...