Rockwell v. Standard Stamping Co.

Citation241 S.W. 979,210 Mo. App. 168
Decision Date02 May 1922
Docket NumberNo. 17017.,17017.
PartiesROCKWELL v. STANDARD STAMPING CO.
CourtCourt of Appeal of Missouri (US)
241 S.W. 979
210 Mo. App. 168
ROCKWELL
v.
STANDARD STAMPING CO.
No. 17017.
St. Louis Court of Appeals. Missouri.
May 2, 1922.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

Action by George E. Rockwell against the Standard Stamping Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. U. Hayden and John P. Griffin, both of St. Louis, for appellant.

Hall & Dame, of St. Louis, for respondent.

BIGGS, C.


This action for personal injuries resulted in a verdict and judgment for plaintiff in the sum of $2,000, from which the defendant has appealed, assigning error in the court's action in refusing to peremptorily instruct the jury to return a verdict for defendant at the close of plaintiff's evidence, which was the only evidence introduced, in the case.

Plaintiff, a driver of a team and wagon, proceeding southwardly on the west side of Ninth street, a north and south public thoroughfare, and when about 50 feet north of Cass avenue, an east and west street, was thrown to the street and injured by reason of a truck, while being driven northwardly on Ninth street, striking the left front wheel of the wagon on which plaintiff was sitting.

The demurrer filed by the defendant at the close of plaintiff's evidence presents two questions, namely: First, whether the plaintiff's evidence was sufficient to prima facie establish the necessary allegation in plaintiff's petition to the effect that at the time of the accident the truck was owned by the defendant and was then being operated by an agent of defendant acting within the scope of his employment; and, second, whether the plaintiff's evidence was sufficient to substantiate any of the allegations of negligence set forth in the petition.

The accident referred to happened at about 5 o'clock in the afternoon of the 26th day of October, 1918, which was a business day. As stated, the plaintiff was proceeding southwardly on the west side of Ninth street, a proper and lawful place for him to be at the time. When about 40 or 50 feet north of where Cass avenue intersects Ninth street, the plaintiff's wagon on which he Was riding was struck by an automobile truck which had turned north into Ninth street from Cass avenue and in some manner ran over onto the vest or wrong side of the street and collided with the plaintiff's wagon. The evidence indicated that the rear wheels of the truck skidded over to that side, striking the left front wheel of the wagon, causing plaintiff to be thrown to the street and injured.

Plaintiff testified that after he was thrown to the street he raised up from the ground and looked at the truck, which was going north on Ninth street, and by that time was perhaps 40 or 50 feet from him, and saw the license number on the back of the truck, being No. 24038; that at the time of the collision the truck was going about 25 miles an hour, and had turned from Cass avenue into Ninth street and swerved to the west side of Ninth street before the collision. Plaintiff stated that the truck appeared to be a large-sized truck with curtains. He had never seen the truck before, but stated the wheels "looked to be yellow, a dirty looking yellow," and that the body of the truck was painted dark. The truck proceeded northwardly, and, so far as the record discloses, no one saw it except one witness, who stated that the truck looked like a large delivery truck. This witness arrived on the scene immediately after the accident, picked up the plaintiff from the street, and was given by plaintiff the number referred to. A police officer arrived shortly afterward, and was given this number. This

241 S.W. 980

officer stated that he saw marks on the street in a semicircle, which appeared to have been made by the skidding of an automobile. At about 6 o'clock, or one hour later, this officer went to the place of business of the defendant at Second and Chambers streets in the city of St. Louis, but found no one there except a night watchman, who admitted the officer to the garage of the defendant. The officer there found a truck which bore the license plate No. 24038, being the same number given him by the plaintiff. This appeared to be a large delivery truck painted dark red, with a top on it and curtains down the side, and in the center of the truck there were stakes to be taken in and out to load and unload goods. The officer testified that this license number was on the back of the machine securely fastened under the bed of the truck, and that the name "Standard Stamping Company" was on the side of the truck. Plaintiff was unable to say whether the truck had any stakes on it. The officer does not say whether the stakes referred to were on the rear of the truck or on the side. He describes them as being in the center of the truck. If the stakes were on the side...

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