Niehaus v. Schultheis
| Decision Date | 04 June 1929 |
| Docket Number | No. 20638.,20638. |
| Citation | 17 S.W.2d 603 |
| Parties | NIEHAUS v. SCHULTHEIS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; J. C. Kiskaddon, Judge.
"Not to be officially published."
Action by Robert Niehaus, by next friend, against Fred C. Schultheis. Judgment for plaintiff, and defendant appeals. Affirmed.
Brackmann, Hausner & Versen, of St. Louis, for appellant.
Claud D. Hall, of St. Louis, for respondent.
This is an action for personal injuries sustained by plaintiff as the result of an automobile collision at Conway and Ballas roads in St. Louis county. The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $5000, and defendant appeals.
Conway road runs east and west, and Ballas road runs north and south, and they are much traveled roads. The collision occurred on Sunday afternoon. Plaintiff was driving his father's automobile eastwardly on Conway road, and defendant was driving his automobile north on Ballas road.
According to his evidence, plaintiff, previous to reaching the intersection, had been driving 15 to 20 miles per hour, but when within 10 to 15 feet west of Ballas road he slowed down to 10 miles per hour, and sounded his horn. At that time he saw defendant about 125 to 150 feet south of the intersection, coming north, on the east side of Ballas road. Plaintiff heard no signal from defendant's automobile, and proceeded on across Ballas road at about 10 miles per hour, and when the rear end of his automobile got within about 4 feet of being entirely across the intersection, it was struck by defendant's automobile, and turned over. Defendant's automobile at no time lessened its speed, and at no time changed its course, but continued on north until the collision occurred. The intersection of the traveled parts of the two roads formed a square about 36 or 40 feet wide. When the collision occurred, plaintiff's automobile was turned over and shoved or dragged to the northeast about 20 feet, and plaintiff thereby received the injuries for which he sues.
According to defendant's evidence, he put on his brakes as soon as he saw plaintiff's automobile. At that time plaintiff's automobile was a little east of the center of the intersection. He put on his brakes, and tried to swerve his automobile to the left to go behind plaintiff's automobile, but was unable to do so, and his right bumper and fender struck the rear right bumper and fender of plaintiff's automobile. He did not see the plaintiff's automobile until he was within about 5 or 6 feet from it.
Since the only assignments of error made on this appeal relate to instructions given on the plaintiff's behalf, and no question is made as to the sufficiency of the evidence to warrant the giving of such instructions, we need not set out the facts in detail.
Defendant complains that plaintiff's instruction No. 1 is erroneous, because it assumes that defendant failed to exercise the highest degree of care. The instruction, so far as material to the complaint made against it, is as follows: "And, if you further find and believe, from the evidence, that the defendant negligently, that is, by failing to exercise the highest degree of care, caused and suffered his said automobile to run at a high, excessive and dangerous rate of speed under the circumstances, if you so find, and that by reason thereof the defendant's automobile collided with the automobile that was being driven by the plaintiff and that plaintiff was injured as a result thereof, your verdict should be for plaintiff."
We can see no assumption of fact in this instruction. It does not assume, but hypothesizes, the failure of defendant to exercise the highest degree of care. In other words, it hypothesizes negligence on the part of defendant causing plaintiff's injury, and defines "negligence" as the failure to exercise the highest degree of care.
Assignments of error are made upon the giving of plaintiff's instructions Nos. 2 and 3. These assignments are based on the assumption that the statute (section 19, p. 91, Extra Session Laws 1921), requiring the driver of an automobile on a public highway to exercise the highest degree of care, is inapplicable to the humanitarian doctrine. On the authority of recent decisions of our Supreme Court, and of this court as well, these assignments are ruled against defendant. Gude...
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