Repp v. Kirkwood Ice Cream Co., 20986.

• Decision Date: 04 March 1930
• Docket Number: No. 20986.,20986.
• Citation: 25 S.W.2d 135
• Parties: REPP v. KIRKWOOD ICE CREAM CO.
• Court: Missouri Court of Appeals

25 S.W.2d 135

REPP v. KIRKWOOD ICE CREAM CO.

No. 20986.

St. Louis Court of Appeals. Missouri.

March 4, 1930.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be officially published."

Action by Louis G. Repp against the Kirkwood Ice Cream Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Watts & Gentry, of St. Louis, for appellant.

Leo Lyng, Mark D. Eagleton, and James A. Waechter, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries received by plaintiff in a collision between his car and a truck belonging to the defendant. The trial, with a jury, resulted in a verdict for plaintiff for $4,000, and judgment was given accordingly. Defendant appeals.

Several specifications of negligence were pleaded, but the cause was submitted to the jury solely under the humanitarian rule. Defendant insists here that there was no evidence to warrant the submission of the cause under that rule, and, moreover, urges that its instruction in the nature of a demurrer to the evidence should have been given.

The collision occurred on the Lemay Ferry road, just south of St. Louis. This road runs north and south, and is intersected on the west by Tesson road. The collision occurred at this intersection.

Plaintiff testified: "I was driving a Franklin car on that day, which was Saturday, October 1, 1927. I was alone in the car. I was driving north on the Lemay Ferry Road. As I approached the Tesson Road, about one o'clock in the afternoon, I was traveling due north at a rate of about 20 to 25 miles per hour. I was then about 50 feet from the Tesson Road. I reduced my speed then on account of wanting to make a left turn into Tesson Road. Lemay Ferry Road is paved with concrete. I judge the width of the concrete slab to be about 20 feet. Tesson Road is not paved; it is a dirt or gravel road. As I got to Tesson Road, I reduced my speed to about 10 miles per hour. I then noticed a touring car coming south. I would judge it was about 125 feet north of the north line of Tesson Road. It looked to me like a Dodge touring car. Before I turned into Tesson Road I gave a signal by extending my left hand out to the side of my car. As I was making the turn I was going about 10 miles per hour. The truck was coming at a pretty fair gait, I would judge it would be about 20 or 25 miles an hour. The truck struck my car at about the right-hand door. I was then facing west into the Tesson Road. The front end of the car had then gotten about three feet off the concrete, on Lemay Ferry Road into Tesson Road. When it struck, my car went to pieces. It split right in two. As I fell down in between the cars, the rear end of my car rammed me. The truck went right through my car. When I reached the point about a quarter of a mile south of the point of the accident, there was a slight hill there coming down towards the place of the collision. It is pretty long and fairly steep. There is a curve in the road on the hill. I got around that curve shortly before reaching the point where I was to turn into Tesson Road. It had rained heavily that morning and was drizzling rain at the time of the accident. When I left the top of the hill, headed down towards the Tesson Road, I was going between 20 and 25 miles per hour. I discovered the touring car when I was about 50 feet south of the south line of Tesson Road. Up to that time I had not seen the truck. I saw the touring car first. At that time the touring car was about 200 feet from me. I was about 50 feet south of the south line of Tesson Road, and the touring car was about 125 feet north of that road. I would judge that Tesson Road would be about 25 feet wide. When I first got a glimpse of the touring car, I did not see the truck at all. When the touring car was about 30 or 40 feet north of the Tesson Road, then the touring car and the truck were abreast. That was the next time I looked up after first seeing the touring car. I judged they were then about 30 feet north of Tesson Road. At that time I had already started to turn and had given my signal with my left hand, holding it down. The touring car slackened up. The truck came in from the east side of the road and cut in ahead of the touring car. The truck was abreast of the touring car, east of the center line of the road, and it cut around in front of the touring car. When the truck got in ahead of it, the touring car was just a few feet, 5 or 10 feet, back of the truck. The truck was then headed right down south, after cutting in ahead of the touring car, and had gotten over west of the center line of the concrete before the collision occurred. When the collision occurred I judge the truck was headed rather to the southwest. I think all four wheels of the truck were on the concrete when the collision occurred. I would judge that the collision occurred about 15 feet south of the north line of Tesson Road, or about the center of that road. As I came down the hill on the concrete toward Tesson Road, my car did not skid. It did not skid off the road. I don't recall ever getting off of the road at all or doing any skidding before the accident occurred. I am positive my car did not skid into the truck."

Pete Weibert, a witness for plaintiff, testified: "I was driving my car south on the Lemay Ferry...