Ponticello v. Liliensiek

• Decision Date: 05 June 1934
• Docket Number: No. 22796.,22796.
• Citation: 72 S.W.2d 134
• Parties: PONTICELLO v. LILIENSIEK et al.
• Court: Missouri Court of Appeals

72 S.W.2d 134

PONTICELLO v. LILIENSIEK et al.

No. 22796.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Appeal from St. Louis Circuit Court; Robert W. McElhinney, Judge.

"Not to be published in State Reports."

Action by Rosa Ponticello, a minor, by Maria Ponticello, her next friend, against Edward G. Liliensiek and another, a copartnership doing business as Liliensiek & Hilgeman Grocery & Meat Market Company, and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

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 for personal injuries sustained by plaintiff when struck by an automobile truck belonging to defendants Edward G. 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 in favor of plaintiff for $750, and the defendants appeal.

The defendants assign error here for the giving of plaintiff's instruction No. 1, submitting the cause to the jury under the humanitarian rule.

The accident which resulted in plaintiff's injury 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 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. Maria Ponticello, the mother of plaintiff, Rosa Ponticello, 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. Rosa was seven years old at the time of the accident. There was a vacant lot on the east side of Hodiamont avenue opposite the Ponticello 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. Rosa and her little brother, Nunzio, seated in a little homemade wagon, were coasting eastwardly down this roadway and across Hodiamont avenue, and, while crossing Hodiamont, were struck by the defendants' truck traveling south on Hodiamont. Rosa was injured, and Nunzio was killed.

Albert Klipp testified, for plaintiff, as follows: "I was familiar with Hodiamont and Garesche Avenues on December 19, 1931. I was out there the day of the accident. I was in a junk yard, on the west side of Hodiamont, right next to a house on the south side of the junk yard, removing a part from a machine. My machine was in the street on the east side of Hodiamont, and my wife was in the machine. Hodiamont Avenue is about twenty-five feet wide, and is improved as a cinder road. As I looked up I saw that truck coming down making an awful noise. It was going pretty fast, swaying from side to side. In my opinion the truck was going from thirty to thirty-five miles per hour. I was about fifty feet from the scene of the accident. I did not see the accident. I heard a sliding sound like brakes squeaking. I went over there after the accident and found the truck on the east side of Hodiamont about twenty-five feet from Garesche, and the boy was lying at the back end of the truck, about ten feet from the back end of the truck. The little girl was walking up towards her home. She was holding her head, and blood was running down the side of her face. Samuel J. Porter was the driver of the truck. He was driving on the east side of the road at the time I first saw him."

Elvira Klipp testified, for plaintiff, as follows: "I was sitting in our machine on the driver's side while my husband was taking a part off a machine in the junk yard. I looked up the street, and saw the truck coming down at a terrific speed—about thirty-five miles an hour I should judge. I watched it go by. It was swaying from side to side. I heard a noise and got out. I looked down the street and saw the truck had stopped. The truck had stopped on the east side of the street. The boy was lying on the east side of the street. I did not see any truck parked on the west side of the street."

Marie Niehoff testified, for plaintiff, as follows: "I know Rosa and Nunzio Ponticello. I was on Hodiamont Avenue on December 19, 1931, in the afternoon. I was up the street about ten houses...