Reese v. Holekamp

• Decision Date: 01 April 1924
• Docket Number: No. 18427.,18427.
• Citation: 260 S.W. 762
• Parties: REESE v. HOLEKAMP.
• Court: Missouri Court of Appeals

260 S.W. 762

REESE v. HOLEKAMP.

No. 18427.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

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

"Not to be officially published."

Suit by Walter Reese, Jr., by his next friend, Walter Reese, Sr., against Jul.. R. Holekamp. Judgment for plaintiff, and defendant appeals. Affirmed.

Conrad Paeben, of St. Louis (Albert Wiebe, of St. Louis, of counsel), for appellant.

Alexander McLeod, of Maplewood (Marsalek & Stahlhuth, of St. Louis, of counsel), for respondent.

NIPPER, C.

Plaintiff brought suit to recover damages for personal injuries alleged to have been sustained on November 21, 1921, when the automobile which he was operating northwardly on Big Bend road, at the intersection of Elm avenue, in Maplewood, was struck by defendant's automobile.

There were six specific assignments of negligence in the petition.

Plaintiff, who was 18 years of age, was driving a Ford automobile northwardly on Big Bend road. Big Bend road runs north and south, while Elm avenue runs east and west. When plaintiff had reached the corner of Elm avenue and Big Bend road, he stopped his car. About 25 feet before be reached Elm avenue he saw the defendant's car about 90 feet away, approaching from the east at the rate of 25 or 30 miles an hour. The plaintiff brought his car to a stop about a foot from the curb, at the southeast corner of the intersection, and waited for the defendant's car to pass. Instead of defendant's car continuing on it slowed down to about 10 or 15 miles an hour when it had reached the intersection, then turned south, and struck the plaintiff's car while the latter was standing still. His attention was attracted to the defendant's car by the light. Both of the cars carried headlights.

There was no evidence offered by the defendant, and, no question being raised here as to the extent of the injuries, or the amount of the verdict, it is unnecessary to set out the nature and character of the injuries which plaintiff sustained.

At the close of the plaintiff's case the defendant requested an instruction in the nature of a demurrer, which was overruled.

The court then instructed the jury, at the request of plaintiff, that, if they found that defendant was running and operating the automobile along and upon Elm avenue in a westwardly direction, and that at said time and place the defendant approached Big Bend road at a time when he was negligently operating the automobile by running it at an excessive and dangerous rate of speed, and failed to check the speed as it approached Big Bend road, and that, by reason of such negligent acts, the defendant's automobile ran into and against plaintiff's automobile while plaintiff was exercising ordinary care, then plaintiff was entitled to recover.

The jury found for plaintiff, and the defendant appeals, and insists in this court that the trial court should have given its instruction in the nature of a demurrer, and should not have submitted the issue of negligence as submitted in plaintiff's instruction. We are not favorably impressed with the suggestion that a demurrer should have beer sustained under the facts as disclosed by this record. Plaintiff's car was standing near the curb on the Big Bend road, and about 1 foot from where it intersects with Elm avenue. He had stopped his automobile completely, in a position of safety, and at a point where there could have been no occasion for defendant striking him had he been exercising ordinary care or paying any attention to where he was going. Defendant was driving 25 or 30 miles an hour when he was 90 feet away from Big Bend road. He continued at this rate of speed until he was as close as 30 feet to the crossing. When he had reached the crossing he had slowed down to 10 or 15 miles an hour, and suddenly swerved his car over, and drove directly against the car o plaintiff. Therefore it was clearly a question for the jury as to defendant's liability.

Defendant contends that there was error in the giving of instruction No. 1, because the evidence discloses that' the excessive speed of the automobile and the failure to slow down could not be said to be the prose mate cause of the injury. But we think the jury could have inferred that, had defendant slowed down his automobile in a proper manner, he would not have turned directly into plaintiff's car and injured him. The instruction was within the purview of both tin pleadings and the evidence, and the giving of the same in the form in which it was given was not error against the defendant materially affecting the merits of this case.

Therefore the Commissioner recommends that the judgment be affirmed.

PER CURIAM.

The foregoing opinion of NIPPER, C., is adopted as the opinion of the court.

The judgment of the circuit court is accordingly affirmed.

ALLEN, P. .J., and DAUES, J., concur: ALLEN, P. J., in a separate opinion, in which DAUBS, J., also concurs.

BECKER, J., not sitting.

ALLEN, C. J.,

I concur in the opinion of Commissioner Nipper herein, but desire to add something further to what is said therein regarding the assignment of error predicated...