Ponticello v. Liliensiek
| Decision Date | 04 June 1935 |
| Docket Number | No. 23172.,23172. |
| Citation | 83 S.W.2d 150 |
| Parties | PONTICELLO v. LILIENSIEK et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.
"Not to be published in State Reports."
Action by Maria Ponticello against Edward C. Liliensiek and another, a copartnership doing business under the name of the Liliensiek & Hilgeman Grocery & Meat Market Company, and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
See, also, 72 S.W.(2d) 134.
A. E. L. Gardner, of Clayton, for appellants.
John F. Clancy, of St. Louis, and E. McD. Stevens, of Clayton, for respondent.
SUTTON, Commissioner.
This is an action to recover damages for the wrongful death of plaintiff's minor son Nunzio, who died from injuries sustained when struck by an automobile truck belonging to defendants Edward C. Liliensiek and Elmer Hilgeman, and driven by their chauffeur, the defendant Samuel J. Porter.
The trial, with a jury, resulted in a verdict and judgment for plaintiff for $6,500, and the defendants appeal.
Appellants assign error here for the refusal of their instruction in the nature of a demurrer to the evidence.
The accident which resulted in Nunzio's death occurred on December 31, 1931, about 3:30 o'clock in the afternoon, on Hodiamont avenue, which is an open public street in the village of Jennings, in St. Louis county. Hodiamont avenue, the traveled or main part of which is about 20 feet wide, runs north and south, and is intersected by Garesche avenue, which runs east and west, about 50 feet south of the scene of the accident. Plaintiff resided at the time of the accident at 3406 Hodiamont avenue. The accident occurred in front of her home, which is on the east side of Hodiamont avenue. There is a vacant lot on the west side of Hodiamont avenue opposite plaintiff's home. There runs diagonally over this vacant lot in an easterly direction a sort of path or roadway entering the west side of Hodiamont avenue at a point about 45 or 50 feet north of Garesche avenue. Nunzio and his little sister Rosa, seated in a little homemade wagon, were coasting eastwardly down the roadway and across Hodiamont avenue, and while crossing Hodiamont avenue were struck by defendant's truck traveling south on Hodiamont avenue. Nunzio was killed, and Rosa was injured.
Rosa brought suit against the defendants to recover damages for her injuries sustained in this accident. She obtained a judgment in the circuit court, which on appeal was affirmed by this court. See Ponticello v. Liliensiek, 72 S.W.(2d) 134.
The facts in the present case are not essentially different from the facts in Rosa's case.
In the present case the speed of the truck as it approached the place of the accident was variously estimated by the witnesses at from 20 to 35 miles per hour. Two witnesses testified that the truck was running at a speed of 35 miles per hour, and was swaying from side to side of the street, without any checking of its speed, as it approached the place of the accident. Defendant Porter, the driver of the truck, estimated that he could have stopped the truck running at 20 to 25 miles per hour in 15 feet, and running at 30 to 35 miles per hour in 20 feet.
Marie Niehoff was on Hodiamont avenue about ten houses—estimated at 200 to 300 feet—north from the place of the accident. When the truck passed her going south towards the place of the accident, she looked south down Hodiamont avenue, and saw Nunzio and Rosa with their little wagon "down by the gutter on this (the west) side of the street." She saw them crossing over Hodiamont avenue "toward the east." After the truck passed her, "it did not change its speed until it stopped down by the corner of Garesche and Hodiamont."
There was testimony that after the accident Nunzio was "lying on the east side of the street, almost to the gutter." The truck was on the east side of the street when it stopped.
Defendant Porter, the driver of the truck, admitted that the truck was on the left side of the street going south when it hit the children, and that when he stopped the truck it was on the east side of the street, and Nunzio lay behind the truck.
It thus appears that while Nunzio and Rosa, with their little wagon, were crossing the street from west to east, in front of the truck and in plain view of the driver, the truck traveled a...
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