Roemich v. Wilson

• Decision Date: 03 June 1930
• Docket Number: No. 21202.,21202.
• Parties: ROEMICH v. WILSON.
• Court: Missouri Court of Appeals

28 S.W.2d 430

ROEMICH v. WILSON.

No. 21202.

St. Louis Court of Appeals. Missouri.

June 3, 1930.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be officially published."

Action by Alfred F. Roemich against Hollis Wilson. Judgment for plaintiff, and defendant appeals.

Affirmed.

Harold F. Hecker, Lyon Anderson, and Leahy, Saunders & Walther, all of St. Louis, for appellant.

Mark D. Eagleton and Leo Lyng, both of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by plaintiff in an accident which occurred at the intersection of Pine and Eleventh streets, in the city of St. Louis. Pine street runs east and west, and Eleventh street north and south. Each street is about 35 or 40 feet wide. Plaintiff was crossing Pine street from north to south on the west side of Eleventh street, when he was struck by a west-bound automobile driven by defendant over Pine street.

There were several assignments of negligence in the petition, but the case was submitted to the jury solely under the humanitarian doctrine. All other assignments of negligence in the petition were abandoned.

The answer, in addition to a general denial, pleaded contributory negligence, alleging that plaintiff was negligent in stepping from the north curb of Pine street while defendant was crossing the intersection of Eleventh and Pine streets, and walking toward the path of defendant's automobile and into and against said automobile without looking for the approach of automobiles, and in such close proximity to defendant's automobile that defendant was unable to swerve his automobile sufficiently to prevent plaintiff from walking into and coming in contact with said automobile.

The principal description of this accident is found in the testimony of Roemich, the plaintiff, and Wilson, the defendant, in the case. Plaintiff testified that he stepped off the north curb of Pine street at about the west building line of Eleventh street. As he stepped off the curb he looked east and saw defendant's automobile coming about 100 to 150 feet away. He did not thereafter see or hear defendant's automobile until he was struck. He stated that he saw an ash wagon north-bound on Eleventh street, and that the horse's head at that time was about the center of Pine street, and the horse was going north. Plaintiff after looking to the east walked straight ahead until he reached the center of the intersection. He looked west to see if any traffic was coming from that direction. About the time he reached the center of the street, or a little south of the center, he was struck by defendant's automobile. He did not state definitely what part of the automobile struck him.

It is unnecessary to refer to his testimony with respect to his injuries, because no point is made as to the character or extent of his injuries, or the amount of the verdict.

Defendant testified that he resided in Ironton, Ohio, and was accompanied by his mother, two sisters, and his mother's sister. He was driving west on Pine street at a speed of about 15 or 20 miles per hour. As he approached Eleventh street from the east, there was an automobile coming north on Eleventh street, and it turned into Pine street in front of him, and proceeded west on Pine street. At the time this automobile, coming from the south over Eleventh street, entered the intersection and turned west, it was so near defendant's car that he was compelled to slow down and shift gears. He was not certain as to whether he came to a complete stop or not. He then started his automobile, and when he had reached the middle of the intersection, he saw plaintiff step off the north curb of Pine street; that plaintiff was looking to the west or in the opposite direction to where defendant's car was at the time. He sounded his horn, and continued on toward plaintiff, in the meantime increasing the speed of his car. He stated that when he was within about three feet of plaintiff, he swerved his car to the left, and plaintiff continued walking straight ahead, and walked directly into the side of his car, striking it about the middle.

There is evidence in the record that the point where plaintiff left the sidewalk was about 12 feet west of the curb line of Eleventh street. At the time defendant struck plaintiff, he had increased the speed of his car to about 15 miles per hour. The occupants of the car, which defendant was operating, testified substantially as did defendant as to how the accident occurred.

The point made on appeal is that the court erred in giving to the jury instruction No. 1, submitting the case under the humanitarian doctrine, because there was no evidence authorizing it, and therefore should have given defendant's requested instruction G, withdrawing from the jury's consideration the question of liability under the humanitarian doctrine. It is also insisted that the court erred in giving the jury instruction No. 4 of its own motion, because it amounted to a comment on the evidence unfavorable and prejudicial to defendant.

The argument is advanced by defendant here that there is no evidence in the record showing the position of defendant's car at the time plaintiff came into a...