Riechers v. Meyer, 21054.

• Decision Date: 03 June 1930
• Docket Number: No. 21054.,21054.
• Citation: 28 S.W.2d 405
• Parties: RIECHERS v. MEYER.
• Court: Missouri Court of Appeals

28 S.W.2d 405

RIECHERS v. MEYER.

No. 21054.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Action by Norman Riechers, an infant, by August Riechers, his next friend, against Christopher Meyer. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

Anton A. Tibbe, of Union, and Jesse H. Schaper and Randolph H. Schaper, both of Washington, Mo., for appellant.

W. L. Cole and T. P. Hukriede, both of Union, for respondent.

SUTTON, C.

This is an action for personal injuries. Plaintiff was run down by a Ford truck belonging to and driven by the defendant, on Maupin avenue, in the city of New Haven, and thus received the injuries for which he sues. Maupin avenue runs north and south, and is intersected by Melrose street, which runs east and west. The accident occurred near this intersection. Defendant was driving the truck north on Maupin avenue. Plaintiff, who was nine years old, and Henry Thormann, twelve years old, were walking south on said avenue some distance behind a farm wagon which was also going south.

Plaintiff, in his petition, charges defendant with negligence in the following particulars, to wit: That he negligently failed to keep his truck as near the right-hand side of the street as practicable; (2) that he negligently operated said truck at an excessive rate of speed; (3) that he negligently failed to keep his truck under proper control, and failed to diminish the speed or change the course of said truck when approaching the plaintiff; and (4) that he saw, or by the exercise of the highest degree of care could have seen, plaintiff in a position of imminent peril in time thereafter, by the exercise of the highest degree of care, with the means at hand, and with safety to himself and the other occupant of the truck, to have stopped said truck, slackened the speed of, or turned the same so as to have avoided striking plaintiff, but negligently failed to do so.

The answer is a general denial, coupled with a plea of contributory negligence.

The trial, with a jury, resulted in a judgment for defendant, and plaintiff appeals.

The accident happened in the neighborhood of a public school, at about 4 o'clock in the afternoon. Plaintiff attended this school. Upon the dismissal of the school plaintiff and Henry Thormann, who also attended the school, proceeded south on Maupin avenue.

Plaintiff testified that he and Henry got on the rear end of the farm wagon as it was passing, going south; that after riding a short distance they got off the wagon, and were walking behind the wagon; that the wagon gradually gained on them, and that he was about five steps right behind the wagon wheel, on the east side; that the wagon was on the west side of the street; that Henry was walking west of him, by his side; that they were real close together, walking slowly; that he did not know how fast the wagon was going, but that the horses were walking; that he did not see the truck ahead of him; that he did not feel anything touch him, that he just saw the fender above him, and that was all; that that was the last thing he could remember; that he was walking behind the left wagon wheel, in back of it, when he was struck, and had made no turn one way or the other when he last remembered; that when he came to himself again he was at home in bed; that he was only fifteen feet back of the wagon when the car hit him, even with the left wheel.

Henry Thormann's testimony substantially corroborated the testimony of plaintiff.

August S. Riechers, plaintiff's father, testified that in a conversation he had with defendant immediately after the accident, defendant stated that he saw the plaintiff in back of the wagon, and that the next thing he saw was plaintiff on one of the fenders, and that when he stopped plaintiff was lying in the street.

Defendant testified that he was driving a Ford roadster which had been converted into a truck; that his mother-in-law, Mrs. Gus Meyer, was with him; that just when the front end of his truck got about even with the front end of the wagon, the plaintiff jumped or ran out from behind the wagon, in front of the truck; that there was a space of about three or four feet between the truck and the wagon; that he drove to the right of the center of the street and that left a space of three or four feet between the two vehicles as they passed each other; that when he saw plaintiff come out in front of the truck, he slammed on the brakes all he could; that when he first saw the...