Potashnick v. Pearline

• Decision Date: 20 November 1931
• Docket Number: No. 29269.,29269.
• Citation: 43 S.W.2d 790
• Parties: POTASHNICK v. PEARLINE.
• Court: Missouri Supreme Court

43 S.W.2d 790

POTASHNICK v. PEARLINE.

No. 29269.

Supreme Court of Missouri, Division No. 1.

November 20, 1931.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Yetta Potashnick against Louis Pearline. From judgment for plaintiff, defendant appeals.

Affirmed.

E. H. Robinson and Wayne Ely, both of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

FRANK, J.

Action by plaintiff, respondent here, against defendants, Pearline and Rolla Wells, receiver of United Railways Company of St. Louis, to recover damages for alleged personal injuries. Verdict and judgment went against defendants in the sum of $25,000. Both defendants appealed, but the appeal of defendant Wells has been dismissed. The instant proceedings present the appeal of defendant Pearline.

The first contention is that the court erred in refusing defendant's requested instruction in the nature of a demurrer to the evidence. This contention is based on two grounds: (1) There was no evidence of the commission of any negligent act by defendant, and (2) there was no showing of any causal connection between the injury and any act of defendant.

The rule is so well settled it is hardly necessary for us to say, in passing, that in determining the propriety of the court's action in refusing defendant's demurrer to the evidence, the plaintiff is entitled to have the whole evidence considered in a light most favorable to her, giving to her the benefit of every reasonable inference in her favor which a fair-minded jury of ordinary intelligence might legitimately draw from the proven facts and circumstances, and rejecting all countervailing facts and inferences. In determining this question, we will view the evidence in the light of this rule.

Plaintiff's injuries were caused by a collision between an automobile in which she was riding as a guest or passenger, and a street car operated by defendant Rolla Wells, receiver of the United Railways Company of St. Louis. The collision occurred at the intersection of Hebert street and Garrison avenue, two public streets in the city of St. Louis, Garrison avenue runs north and south and is about thirty feet wide. Hebert street runs east and west and is about thirty-two feet wide. Two street car tracks run east and west on Hebert street. The north track is the west-bound track. There were no stop or caution signs to regulate the traffic at this intersection. There were no obstructions to view in the streets or in the intersection. There are store buildings at the southeast and northeast corners of the intersection. The collision occurred at about 3 o'clock in the afternoon. The day was bright, the sun was shining, and the streets were dry. The street car was traveling west on the west-bound car track on Hebert street. Defendant was the owner and driver of the automobile and, at the time in question, was driving it northward on Garrison avenue. Plaintiff was seated on the left-hand side of the car, in the rear seat. Defendant's wife, Mrs. Pearline, was in the same seat and to the right of plaintiff. To the right of Mrs. Pearline and in the same seat were two boys, her son and plaintiff's son. One boy sat in the other boy's lap. Plaintiff testified that the two boys, one seated on the other's lap, obstructed her view so that she could not see to the right and she did not know how the accident happened.

Plaintiff called two witnesses, Horan, the motorman on the street car, and one Ashkanazi, who was driving an automobile about ten feet behind defendant's automobile. Defendant Pearline did not testify in his own behalf, but after the demurrer to plaintiff's evidence was overruled, he was called as a witness by his codefendant Rolla Wells.

Defendant makes two contentions: (1) That the testimony of plaintiff's witnesses Horan and Ashkanazi wholly failed to make a case; and (2) that plaintiff should not be permitted to aid her case by the testimony of defendant who was called as a witness by his codefendant.

We do not agree that the evidence of plaintiff's witnesses failed to make a case for the jury. It was the duty of defendant while crossing the street intersection and car tracks to use his eyes and ears to determine whether or not street cars or other vehicles were about to cross the intersection and to keep his automobile under such control and operate it at such rate of speed so that upon the first appearance of danger he could stop his automobile or slacken the speed thereof in time to avoid a collision.

Plaintiff's witness Horan testified that the day was bright, the sun was shining, and the streets were dry. Her witness Ashkanazi testified that there was nothing in the street to obstruct the view and nothing to prevent defendant Pearline from seeing the street car, and likewise nothing to prevent the motorman on the street car from seeing defendant's automobile. Horan testified to the same thing. Ashkanazi further testified that the street car was running thirty-five miles per hour, and the automobile was running fifteen or twenty miles per hour, at the time of the collision. It was defendant's duty to be on the lookout for the street car and to keep his automobile under control and operate it at such rate of speed that he could avoid a collision. According to the evidence of plaintiff's witnesses, if defendant had looked, as was his duty to do, he could have seen the street car at all times after he crossed the south line of Hebert street, and if he had been operating his automobile in the manner the law directs under such circumstances, he could have stopped it or slackened the speed thereof in time to have avoided the collision. In addition to this, plaintiff's witness Ashkanazi testified that defendant entered the intersection at the southeast corner. That would place his automobile on the east or right side of Garrison avenue as he traveled north, the place where the law says it should have been. Horan, the motorman, testified the collision occurred about four feet west of the center of Garrison avenue. He also testified that defendant Pearline swerved his car to the northeast in an attempt to cut in front of the street car. Evidence that defendant swerved his car from the right side of Garrison avenue westward beyond the center of the intersection, then swerved it to the northeast in an attempt to pass in front of the car, tends to show (1) that he swerved his car into the collision, and (2) that he could have avoided the collision by continuing to turn his car to the left instead of turning it to the right and attempting to pass in front of the street car. The motorman also testified that he heard no warning from the automobile.

The petition charges defendant with negligence in the following particulars: (a) Excessive speed, (b) failure to give any warning, (c) failure to have his automobile under such control that he could seasonably stop it, (d) failure to stop his automobile when he could have done so, (e) failure to keep a proper lookout, (f) failure to swerve his automobile out of danger, (g) swerving his automobile into collision with the street car, and (h) failure to slacken the speed of the automobile.

For the reasons we have stated, the evidence of plaintiff's witnesses, standing alone, made a jury case for her. We are also of the opinion that defendant's own evidence made a prima facie case for plaintiff. While we do not agree with defendant's contention that plaintiff was not entitled to aid her case by defendant's testimony, however, in view of the fact that the evidence introduced by plaintiff made a case for the jury, this contention becomes unimportant. Whether she was or was not entitled to the aid of defendant's evidence, she was nevertheless entitled to go to the jury on the prima facie case made by the evidence which she offered. We therefore decline to be drawn into a discussion of the merits or demerits of an immaterial contention.

We will not determine whether the motorman on the street car was negligent. Conceding, without deciding, that he was negligent, the concurring negligence of the motorman and the defendant would not defeat plaintiff's right to recover, because the negligence of defendant, the driver of the automobile, was not imputable to plaintiff.

Complaint is made in the printed argument that error was committed in the rejection of certain testimony. We find no such complaint in the assignments of error or points and authorities. Complaints which are not assigned as errors will not be reviewed.

It is next claimed that the court erred in refusing defendant's requested instruction D. This instruction reads as follows: "The Court instructs the jury that if you find and believe from the evidence that when defendant Pearline's automobile was at the south curb line of Hebert Street, that the street car mentioned in the evidence was from fifty to seventy-five feet or more east of Garrison avenue and moving west, and if you further find that at said time that defendant Pearline was at said south curb line of Hebert street persons were standing on the sidewalk at or near the point where passengers would board a westbound street car on Hebert street, then if you further find that defendant Pearline started across said Hebert street from the south curb thereof at a rate of speed between six miles an hour and...