Petring v. Albers

• Decision Date: 02 May 1922
• Docket Number: No. 17118.,17118.
• Citation: 241 S.W. 452
• Parties: PETRING v. ALBERS.
• Court: Missouri Court of Appeals

241 S.W. 452

PETRING v. ALBERS.

No. 17118.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Harry Petring against Frank Albers. Judgment for plaintiff, and defendant appeals. Affirmed.

Conrad Paeben, of St. Louis, for appellant.

Clarence T. Case, Victor J. Miller, and David W. Voyles, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action to recover for personal injuries sustained by plaintiff and for damages to plaintiff's automobile truck, resulting from a collision between his truck and an automobile truck driven by defendant, alleged to have been caused by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff in the sum of $425, from which the defendant prosecutes this appeal.

On December 24, 1919, plaintiff was driving his truck southwardly on Clay avenue, a public street in the city of St. Louis extending approximately north and south, crossing Penrose street, another public street in said city extending approximately east and west; and defendant was driving his automobile eastwardly on Penrose street, crossing Clay avenue. Plaintiff testified that he was proceeding about five or six miles an hour, and as he approached Penrose street he signaled with his horn; that when he came into Penrose street he stopped his truck, and saw defendant's truck approaching from the west, about 40 feet west of the west line of Clay avenue; that after he saw defendant's truck he proceeded to cross Penrose street, proceeding at about 5 or 6 miles an hour; when defendant's automobile ran into the rear part of his truck.

Defendant's testimony is that he was proceeding eastwardly on the south side of Penrose street at a rate of speed of about 10 miles per hour approaching the crossing of Clay avenue; that he sounded his horn, checked his speed as he approached the crossing, and "heard no warning come from Clay avenue," whereupon he proceeded forward; that he had "gotten into the intersection about 4 feet" when he saw plaintiff's truck; that plaintiff did nothing to check the speed of his truck, but continued forward, and defendant then swung his truck to the south into Clay avenue, and the two trucks came into collision.

It is unnecessary to state the facts in detail, as there is no point made here that the evidence was insufficient to warrant a verdict for plaintiff; the assignments of error pertaining alone to the instructions.

Complaint is made of plaintiff's main instruction, purporting to cover the case and directing a verdict. This instruction, among other things, tells the jury that if they find that the defendant "failed to keep a vigilant watch for pedestrians and vehicles on said Clay avenue, and particularly the automobile truck of plaintiff herein," then, finding the other acts mentioned, to find for plaintiff. It is said that this instruction is bad for the reason that it makes the failure of defendant to keep a vigilant watch for pedestrians an element of negligence; whereas the duty to keep a lookout for pedestrians was not issuable matter in the case. No authorities are cited in support of this contention. It is true that the duty owing to pedestrians is not directly involved in the case, but we do not think that defendant can be said to have been in any way harmed by such reference to pedestrians in the instruction. As to defendant's duty in respect to keeping a lookout at the crossing, the instruction could not well have misled the jury to defendant's prejudice.

Likewise appellant complains of this instruction on the ground that it was error to tell the jury that it was defendant's duty to keep a lookout...