Rodenkirch v. Nemnich

• Citation: 168 S.W.2d 977
• Decision Date: 02 March 1943
• Docket Number: No. 26205.,26205.
• Parties: RODENKIRCH v. NEMNICH.
• Court: Missouri Court of Appeals

168 S.W.2d 977

RODENKIRCH v. NEMNICH.

No. 26205.

St. Louis Court of Appeals. Missouri.

March 2, 1943.

As Modified on Denial of Rehearing March 19, 1943.

Appeal from Circuit Court of St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Action by Catherine Rodenkirch against Louis Nemnich, doing business as Ferguson Bake Shop, for personal injuries sustained in an automobile accident. The plaintiff secured a verdict and judgment. From an order sustaining defendant's motion for a new trial, the plaintiff appeals.

Order affirmed, and case remanded.

Everett Hullverson and Orville Richardson, both of St. Louis, for appellant.

Moser, Marsalek & Dearing and Theo. J. Krauss, all of St. Louis, for respondent.

ANDERSON, Judge.

This is a suit for damages for personal injuries sustained by plaintiff in an automobile accident. Plaintiff secured a verdict and judgment at the trial below. Thereafter the trial court sustained defendant's motion for new trial, assigning as his reason therefor that the court had erred in giving each and every instruction given on behalf of plaintiff. From the order sustaining said motion, plaintiff appealed.

The accident involved in this case resulted from a collision at the intersection of U. S. Highway 66 and Old Florissant road in St. Louis County, between an Oldsmobile passenger automobile, driven by plaintiff's husband, and in which plaintiff was riding as a passenger, and a truck owned by defendant and operated at the time by defendant's employee, Louis Weitkamp. Highway 66, a two-lane, twenty-foot concrete highway, runs east out of the village of Florissant, Missouri, and lies downgrade from the top of a hill about 300 feet west of Old Florissant road. The latter road, paved with asphalt, intersects Highway 66 at a diagonal, running downgrade to the southeast. A stop sign, erected by the State Highway Department on Old Florissant road, was located according to plaintiff's evidence about 30 feet north of Highway 66, and according to defendant's evidence about 10 feet from the highway. A sign, bearing the legend "Cross Road," was located on the south side of Highway 66, about 300 feet west of Old Florissant road.

The accident occurred on August 8, 1941, at about 12:30 p.m. Just prior to the collision, plaintiff and her husband had been traveling east on Highway 66, and defendant's truck had been traveling south on the Old Florissant road. Plaintiff testified that just prior to the accident she had been examining some maps, and when her husband sounded the horn on his car, she looked up. At that time, according to her testimony, the Oldsmobile was traveling 40 to 45 miles per hour and was 35 to 40 feet west of Old Florissant road, and defendant's truck was about 10 feet north of Highway 66. She further stated that the truck did not stop at any time, and the next thing she knew there was a crash and she lost consciousness.

William Rodenkirch, plaintiff's husband, testified that after passing the crest of the hill about 300 feet west of Old Florissant road, he increased his speed going down the hill to 40 miles per hour, and that when he was 75 to 80 feet from the intersection he saw the defendant's truck about 30 to 35 feet north of the highway moving 15 to 20 miles an hour; that when his car got to within 35 or 40 feet of the intersection, the truck had reached a point about 10 feet from the highway. At that point he sounded his horn, but the truck increased its speed, coming onto the highway, and swerved to the left in front of his car. He swerved to the right and applied his brakes. But, the two vehicles sideswiped each other, the left front fender of his Oldsmobile coming into contact with the right front fender of the truck.

Louis Weitkamp, the driver of the truck, testified that as he approached Highway 66, he decreased the speed of his truck so that by the time he arrived within 10 or 12 feet of the highway, his truck was traveling about 5 miles per hour, and thereafter and before he entered onto the highway, he decreased his speed to a point where the wheels of the truck were barely moving. When he arrived at a point 10 or 12 feet north of the pavement, he moved over to the right side of the seat and looked east and west along Highway 66. From that point he could see 300 feet west to the crest of the hill. He observed nothing coming from either direction, and shifted to second gear. Without again looking west, he proceeded across the pavement at about 5 or 6 miles per hour, and when the front end of his truck reached a position 3 feet south of the pavement, the defendant's car struck his truck immediately to the rear of the right door. He at no time heard any horn sounded. He stated that traveling 5 or 6 miles per hour, he could have stopped his truck in two feet.

The petition contained several assignments of negligence, but plaintiff abandoned all except the charge of negligence under the humanitarian doctrine and the charge of negligent failure to bring the truck to a stop at the stop sign erected at said intersection by the State Highway Department.

Respondent contends, in support of the action of the trial court in granting a new trial, that plaintiff's instructions Nos. 3, 4, and 6 were erroneous.

Instruction No. 3 submitted the issue of defendant's primary negligence in failing to stop the truck in obedience to the stop sign located immediately north of Highway 66 on the right side of Old Florissant road. The Missouri State Highway Department erected this sign prior to the accident in question, but there is no statute which requires persons to stop at this point in obedience to the said sign.

After requiring a finding of certain facts not here in dispute but necessary to a verdict, Instruction No. 3 told the jury that if they found that "defendant approached U. S. Highway 66 and failed to stop at the said highway but drove into said intersection and did carelessly and negligently disregard said stop sign, then the Court instructs you that the defendant, by and through his agent and servant in charge of said automobile truck, was negligent; and if you further find that the said collision occurred and plaintiff was injured as a direct result of such negligence, if you so find, or that said negligence, if any, contributed or helped to cause the said collision, then the Court instructs you that the plaintiff is entitled to recover and your verdict must be in favor of the plaintiff and against the defendant."

The respondent contends that the foregoing instruction is erroneous because it submitted to the jury the theory that a failure to observe the stop sign in question was negligence as a matter of law. If the instruction did so charge, it was clearly erroneous, for at the time of the occurrence in question there was no statute requiring persons operating motor vehicles at that point on Old Florissant road to stop in obedience to said sign. The State Highway Department, by erecting such signs at highway intersections, cannot create a standard of conduct for drivers of motor vehicles, violation of which the courts must declare to be negligence regardless of all other facts and circumstances.

The appellant contends that by requiring a finding that defendant "carelessly and negligently" disregarded said stop sign, the court left the issue of negligence to the jury.

If that part of the instruction stood alone, there would be merit to appellant's contention. But, such is not the case. The instruction says that if the jury find that defendant ...