Rockenstein v. Rogers, 28487.

CourtUnited States State Supreme Court of Missouri
Citation31 S.W.2d 792
Docket NumberNo. 28487.,28487.
PartiesLEO T. ROCKENSTEIN v. JOSEPH ROGERS, Appellant.
Decision Date14 October 1930

Appeal from Circuit Court of City of St. Louis. Hon. H.A. Hamilton, Judge.

AFFIRMED.

Wayne Ely for appellant.

(1) The court erred in admitting incompetent, irrelevant and immaterial testimony on behalf of plaintiff. Busch v. L. & N. Railroad Co., 17 S.W. (2d) 337; Stout v. Public Service Co., 17 S.W. (2d) 363; Falvey v. Hicks, 286 S.W. 385; Hildreth v. Hudloe, 282 S.W. 748; Powell v. Railroad Co., 255 Mo. 451; Cardinale v. Kemp, 274 S.W. 448; Hayes v. Hogan, 273 Mo. 1, 200 S.W. 286, (2) The court erred in overruling defendant's motions to discharge the jury because of repeated references to insurance company throughout the trial. Busch v. Railroad Co., 17 S.W. (2d) 337; Monroe v. Railroad Co., 249 S.W. 644; Franklin v. Kansas City, 248 S.W. 616; Michelroy v. Const. Co., 247 S.W. 209; Williams v. Taxicab Co., 241 S.W. 970; Junge v. Pehl, 240 S.W. 278; Collier v. City of Shelbyville, 219 S.W. 713. (3) The court erred in overruling defendant's demurrer at the close of plaintiff's case, and again at the close of the whole case. Sweeney v. Erving, 228 U.S. 233, 57 L. Ed. 815; Sinay v. Chesebro-Whitman, 140 N.Y. Supp. 1074; Schactele v. Brister, 148 App. Div. (N.Y.) 843; Fusch v. St. Louis, 167 Mo. 620, 57 L.R.A. 136; Carvin v. St. Louis, 181 Mo. 334; Goode v. Coal & Coke Co., 167 Mo. App. 169; Goransson v. Riter-Conley, 186 Mo. 300; Byerly v. Light Co., 130 Mo. App. 593; Walsh v. Railroad, 102 Mo. 587; Waldmann v. Construction Co., 249 S.W. 698. (4) The court erred in giving Instruction 1 for plaintiff. O'Brien Boiler Works v. Sievert, 256 S.W. 555; Stack v. Baking Co., 283 Mo. 396; 223 S.W. 98; Wingfield v. Railroad Co., 257 Mo. 347; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651. (5) The court erred in overruling defendant's motion to discharge the jury because of improper remarks of plaintiff's counsel during the closing argument. Busch v. Railroad Co., 17 S.W. (2d) 337; Monroe v. Railroad Co., 249 S.W. 644; Franklin v. Kansas City, 248 S.W. 616; Michelroy v. Const. Co., 247 S.W. 209; Williams v. Taxicab Co., 241 S.W. 970; Junge v. Pehl, 240 S.W. 278; Collier v. City of Shelbyville, 219 S.W. 713. (6) The verdict was excessive. State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651; Haggard v. Roger-Schmitt, 249 S.W. 712; Hall v. Coal & Coke Co., 260 Mo. 369.

Mark D. Eagleton, John F. Clancy, James A. Waechter and Hensley, Allen & Marsalek for respondent.

(1) The court properly overruled the demurrer to the evidence. (a) The fact that the driver of an automobile operated on a public street permits it to strike another automobile standing still at the side of the street is itself evidence of negligence, if not of gross negligence, sufficient to take the case to the jury. Rogles v. Rys. Co. (Mo.), 232 S.W. 93; Schrader v. Burkel (Mo.), 260 S.W. 63; State ex rel. v. Trimble (Mo.), 260 S.W. 746; Fleishman v. Fuel Co., 148 Mo. App. 117; Nehring v. Sta. Co. (Mo. App.), 191 S.W. 1054; Reese v. Holckamp (Mo. App.), 260 S.W. 762. (b) The jury was not bound to accept defendant's explanation of the accident. They had the undoubted right to believe all of the testimony of any witnesses or none of it or to accept it in part or reject it in part, as they might find the same to be true or false when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v. Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723; Zlotnikoff v. Wells, 220 Mo. App. 875, (c) The fact that defendant testified to facts which, if believed by the jury, would tend to exculpate him from the inference of negligence arising from the facts shown by plaintiff's testimony, did not require the court to take the case from the jury. Fleishman v. Fuel Co., 148 Mo. App. 125; Schrader v. Burkel (Mo.), 260 S.W. 63; Warren v. Tel. Co., 196 S.W. 1030; Whitlow v. Ry. Co., 282 S.W. 525; State ex rel. v. Daues, 290 S.W. 425; Curry v. Ry. Co., 221 Mo. App. 1; Bond v. Ry. Co. (Mo.), 288 S.W. 777; Gannon v. Gas Co., 145 Mo. 502; Bryan v. Ware, 4 Mo. 106. (2) The court did not err in giving plaintiff's Instruction 1. (a) The defendant, in its answer, in pleading contributory negligence on plaintiff's part, charged plaintiff with failing to exercise ordinary care. The defendant is therefore not in position to complain that the court adopted the same course in the above instruction. Mirrielees v. Railroad, 163 Mo. 486; Ellis v. Ry. Co., 234 Mo. 676; Chinn v. Naylor, 182 Mo. 594; Plannett v. McFall (Mo. App.), 284 S.W. 853; Simpson v. Wells, 292 Mo. 301. (b) The defendant's instructions on contributory negligence required the jury to find plaintiff negligent if he committed the acts hypothesized therein. The jury had no occasion to measure plaintiff's conduct by either ordinary care or a high degree of care. Consequently, the alleged error in plaintiff's Instruction 1 was immaterial and nonprejudicial. Secs. 1276, 1513, R.S. 1919; Prewitt v. Railroad, 134 Mo. 623; State ex rel. v. Cox (Mo.), 274 S.W. 376; Koelling v. Fuel Co. (Mo. App.), 267 S.W. 36.

SEDDON, C.

Plaintiff (respondent here) commenced this action against defendant (appellant here), in the Circuit Court of the City of St. Louis, to recover damages for personal injuries alleged to have resulted from defendant's negligence in the operation of an automobile along and over a public street and highway in St. Louis County. A trial of the action to a jury resulted in a unanimous verdict for plaintiff in the sum of $10,000. After an unavailing motion for a new trial, defendant was allowed an appeal to this court from the judgment entered upon the verdict.

The petition charges that "on or about November 11, 1925, plaintiff was in and upon an open and public sidewalk on the west side of Belleview Avenue, between Clayton Road and Wise Avenue, all open and public streets and highways in St. Louis County, Missouri, and plaintiff was alongside an automobile which was then and there parked and standing still at the west curb of Belleview Avenue at the aforesaid place, and that said automobile had been so stopped there and standing still as aforesaid for some time theretofore to-wit, several minutes, and that said automobile was plainly open and visible to all persons passing thereabout, and that defendant then and there drove and operated an automobile southwardly over and along Belleview Avenue there, and negligently caused and permitted said automobile to violently and forcibly collide with and strike the aforesaid automobile parked and standing still as aforesaid, directly thereby causing said automobile which was parked there as aforesaid to go upon said sidewalk there, and to violently and forcibly collide with and strike plaintiff, and plaintiff was directly thereby caused to sustain" certain bodily injuries as specifically described in the petition. The petition prays damages, general and special, in the aggregate sum of $15,000.

The answer is a general denial, and a plea of contributory negligence, on the part of plaintiff, in the following particulars:

"Further answering, defendant states that the plaintiff's injuries, if any, were the result of his own negligence directly contributing thereto in that the plaintiff failed to equip his automobile with lighted lamps as required by law.

"And defendant further states that plaintiff was negligent in that he voluntarily assumed a position of imminent danger when there was at hand and accessible to him a place of safety, and that such negligence on the part of plaintiff directly contributed to his injuries, if any.

"Defendant further states that plaintiff's injuries, if any, were the direct and proximate result of his negligence in occupying himself with filling the gasoline tank of his automobile in the dark and without having said automobile properly equipped with lights as required by law, and thereby making it impossible for the defendant to see the plaintiff or his automobile under the conditions obtaining at the time.

"Defendant further states that plaintiff's injuries, if any, were the result of his negligence in occupying himself with pouring gasoline into the tank of his automobile and in not looking out for automobiles and other vehicular traffic approaching him, although the plaintiff knew, or by the exercise of ordinary care would have known, that his said automobile was in a position of imminent peril of being struck, and that by reason thereof the plaintiff was in a position of imminent peril of being struck by other automobiles, and that such negligence on the part of plaintiff was the direct and proximate cause of the injuries, if any, received by him."

The reply is a general denial of the averments of the answer.

The substantive facts bearing upon the collision, as shown by the record, are practically undisputed; that is to say, defendant, by his own testimony, admits that a collision occurred about five o'clock on the afternoon of November 11, 1925, between defendant's automobile and plaintiff's automobile. Plaintiff, a journeyman carpenter, had been engaged in working upon an apartment building, in process of construction in the city of St. Louis. Plaintiff resided in Richmond Heights, a suburb of the city of St. Louis, situate in St. Louis County. He owned and used a Ford touring automobile in traveling back and forth between his home and his place of work. He stopped work at 4:30 o'clock on the afternoon in question, and while plaintiff was traveling southwardly toward his home along Belleview Avenue, an open and much traveled highway in St. Louis County, at a point between Ethel and Hoover avenues, the gasoline supply in plaintiff's automobile became exhausted. Plaintiff parked his Ford automobile at the west curb of Belleview Avenue, and he walked north about a block to a garage,...

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