Pinteardd v. Hosch
| Decision Date | 08 July 1921 |
| Docket Number | No. 16653.,16653. |
| Parties | PINTEARDD v. HOSCH. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; M. Hartman, Judge.
"Not to be officially published."
Action by Ethel Pinteardd, administratrix of the estate of Scott Pinteardd, deceased, against G. Carleton Hosch. Judgment for plaintiff, and defendant appeals. Affirmed.
Koerner, Fahey & Young, of St. Louis, for appellant.
Kelley, Starke & Moser, of St. Louis, for respondent.
This is an action for damages on account of personal injuries sustained by Scott Pinteardd, now deceased, resulting from a collision between an automobile in which Pinteardd was riding and one owned by the defendant and driven by. William Jackson. Pinteardd died after the trial of this case. His death was suggested to this court, and Ethel Pinteardd, administratrix of the estate of Scott Pinteardd, having tiled her appearance, this cause was revived in the name of the administratrix.
The petition alleges that on November 7 1917, defendant's automobile, while being operated westwardly on Washington avenue at the intersection of Whittier street, in St. Louis, Mo., by defendant's agent, acting within the scope of his employment, collided with an automobile in which Scott Pinteardd was riding and seriously injured him. The negligence alleged was the failure to sound a horn or give other warning, the failure to keep a vigilant watch, or any watch, for this or other automobiles, the failure to slacken the speed of defendant's automobile as it approached the one in which Pinteardd was riding, and a failure to keep the automobile under control as it approached said street intersection, negligent operation of defendant's automobile at a high rate of speed, and a violation of section 1327 of article 12 of the Revised Code of St. Louis, which provides that a vehicle, except when passing a vehicle ahead, should keep as near the right-hand curb as possible.
Defendant's answer consisted of a general denial, followed by a plea of contributory negligence, alleging that plaintiff failed to exercise ordinary care by refusing to ride with the driver of the automobile in which he was riding, and in failing to exercise reasonable control over said driver; that said automobile was not equipped with proper signal devices and failed to sound a warning; that the automobile was not equipped with sufficient lights; and that the driver of said car negligently operated said automobile at excessive speed and failed to yield the right of way, in violation of the city ordinances. The answer also alleges that at the time of said accident the chauffeur in charge of defendant's car was not acting in the scope of his employment as a servant of appellant. The reply was a general denial.
The cause was tried on January 14, 1919, before the court and jury, resulting in a verdict and judgment for plaintiff in the sum of $1,800. Defendant appeals.
The record discloses that on the night mentioned Pinteardd was riding southwardly on Whittier street in an automobile owned and driven by one Walter Latham. The machine was a right-hand drive; Latham, the driver, being on the right side on the front seat and plaintiff on the left in said seat. Latham was proceeding southwardly on Whittier street, and attempted to turn east into Washington avenue at the intersection of these streets. There is a "jog" in Whittier street at this point; Whittier street being further west on the north side of Washington avenue than it is on the south side. Pinteardd was not operating the machine, and it appears that he knew nothing concerning how to operate an automobile.
Plaintiff testified that when the automobile reached the intersection of these streets Latham turned eastwardly into Washington avenue, and in doing so passed to the south of the center on Washington avenue before turning east; that the machine had practically turned east when he noticed that defendant's automobile was coming west on Washington avenue, about 100 yards away; that the defendant's car was running at a speed of about 35 to 40 miles an hour; that the defendant's car swerved left, that is to say, to the south side of Washington avenue, said car at the time going westwardly, and in doing so collided with the left-hand side of Latham's machine, and as a result of which plaintiff was seriously injured; and that the car in which plaintiff was riding was, at the time, traveling at a rate of about 7 miles an hour.
Witness Latham testified that he made the turn into Washington avenue on the right side (south side), driving south on the west side of Whittier street, until he passed the middle of the intersection of Washington avenue, and then turning to the east in Washington avenue; that defendant's car was going west at a terrific rate of speed, probably 40 miles an hour, and that same turned to the left to the south side of the street as if the car wanted to pass him to the south, or left; that he (Latham) stopped his car immediately and was then struck by defendant's car, and that at the time of the collision the car in which plaintiff was riding was about 3 feet from the curb on the south side of Washington avenue and about 12 feet east of Whittier street; that the lights on his own machine were put out by the collision and that defendant's car, after turning his (Latham's) car completely around, ran up on the south side of Washington avenue over a terrace.
Respondent in his brief urges but two assignments of error as the basis of his appeal. These are as follows:
First, that there was positive evidence that the defendant's car was not performing a service in behalf of the defendant at the time of the collision, and that there is no positive evidence by the plaintiff showing that the car was being used for such purpose on the occasion of this accident, and that therefore plaintiff failed to raise an issue as to the authority of Jackson to operate the car on this occasion as the agent of the defendant, and therefore the question of defendant's negligence should not have been submitted to the jury. He relies upon the case of Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, Ann. Gas. 1918D, 1123.
The second point made is that defendant's withdrawal instructions, eliminating from the consideration of the jury certain particular acts of negligence alleged in the petition, should have been allowed because of the failure of the evidence to support such averments.
[] An examination of the record, as complemented by the respondent's additional abstract, clearly disposes of the first insistence against the appellant.
Plaintiff introduced evidence in the form of admissions made by the defendant tending to the effect that, at the time in controversy, Jackson was driving defendant's automobile on the business and in the service of the defendant, and that he was on that occasion cause of action actually engaged in returning to the defendant's home after having gone to the station to mail a special delivery letter for defendant.
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...375 S.W.2d 214, 215(1); Wells v. Wells, Mo.App., 48 S.W.2d 109, 111; Kilcoyne v. Metz, Mo.App. 258 S.W. 4, 6(5); Pinteardd v. Hosch, Mo.App., 233 S.W. 81, 83(2); Latham v. Hosch, 207 Mo.App. 381, 387, 233 S.W. 84, 85(1). See Black v. Epstein, 221 Mo. 286, 303, 120 S.W. 754, 759(2); Concrete......
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...acting within the scope of his employment when the accident occurred, creating no exception to the rule as set out in point 1. Pinteardd v. Hosch, 233 S.W. 81; Latham v. Hosch, 233 S.W. 84. (3) In spite of law, as set out in points 1 and 2, supra, the court sent the case to the jury, and, h......