Rosenkoetter v. Fleer

• Decision Date: 30 October 1941
• Docket Number: 37147
• Citation: 155 S.W.2d 157
• Parties: ROSENKOETTER v. FLEER et al
• Court: Missouri Supreme Court

155 S.W.2d 157

ROSENKOETTER v. FLEER et al

No. 37147

Supreme Court of Missouri, First Division

October 30, 1941

Kenneth Teasdale, Kern L. Cochrum, and Vaughn C. Ball, all of St Louis, for appellants.

OPINION

HYDE Commissioner.

This is an action for damages for personal injuries. Plaintiff had verdict and judgment for $ 10,000. Both defendants appealed but the appeal of defendant, Minerva Rueckholdt, was not perfected and has been dismissed. Defendant Charles F. Zuehlke died after this suit was commenced and the cause was revived against his administrators, hereinafter called appellants. Their appeal is herein considered.

Plaintiff, when six years old, was injured by being struck by an automobile driven by defendant, Minerva Rueckholdt, while he was standing on the sidewalk at a street intersection, after a collision between her automobile and one driven by Charles F. Zuehlke. (The cause was filed in 1931 but was tried in 1939.) Plaintiff's petition made several charges of specific negligence against both defendants. The case was submitted on the following charges of negligence against Zuehlke.

Instruction 1: 'That he proceeded to cross said intersection without stopping or checking the speed of his said automobile.'

Instruction 3: 'Operating his automobile eastwardly on Lee Avenue in such a manner as not to have his said automobile under such control that it could not be readily and reasonably stopped or swerved upon the appearance of danger, and under all the facts and circumstances in evidence.'

Instruction 5: 'Failed and omitted to blow his horn or give any signal or warning of the approach and movement of his said automobile under all the facts and circumstances in evidence.'

Instruction 8: 'Operating his automobile eastwardly on Lee Avenue at a high and dangerous rate of speed under all the facts and circumstances in evidence.'

Appellants assign error in these and other instructions and in the court's rulings on evidence. It is, therefore, necessary only to state sufficient facts, which the evidence tended to prove, in order to show what issues were to be covered by the instructions. The testimony was mainly from the two parties to the collision. Zuehlke was driving his car east on the south (right) side of Lee Avenue, south of the street car tracks in the center of Lee Avenue. Mrs. Rueckholdt was driving her car south on Althone Avenue. (South of Lee this street was called Turner Avenue.) There was evidence that she was driving across Lee on the wrong side (left east) of the street. It was her car that went over the sidewalk and struck plaintiff.

The version of the occurrence given by Zuehlke (in a deposition) was that he slowed up his car at the intersection, looked north and saw the Rueckholdt car about 25 feet north of Lee Avenue; that he thought he 'could make it' and drove across the intersection 'about ten or fifteen miles an hour'; that when he was more than half way across he saw the other car about five feet in front of him 'on the wrong side of the street,' as though making a left turn into Lee; that he 'made a little turn' southeast to avoid it and put on his brakes; and that the Rueckholdt car going 25 miles an hour or more, struck the middle of his car and continued over the curb, striking a lamp post, after he stopped his car. Mrs. Rueckholdt denied that she drove on the wrong side of the street and said that she made a complete stop on the north side of Lee Avenue and then went 'straight across' in second gear at 'about ten miles an hour,' when 'everything seemed clear.' She also testified that she did not see the Zuehlke car at all; that it struck her car after she had crossed the street car tracks; and that she did not hear it approaching or stopping. Neither driver gave any warning signal.

Instruction 1 authorized a verdict for plaintiff if the jury found that 'at the time of and immediately before' the collision 'Zuehlke was operating his automobile eastwardly on Lee Avenue and failed to stop his automobile or (in the alternative) failed to check its speed at the intersection of Lee and Turner, but that he proceeded to cross said intersection without stopping or checking the speed of his said automobile.' (Italics and parentheses ours.) It contained no requirement as to finding when the other car entered the intersection or where it was. Appellants say this was error because, under Section 8385(l), R.S.1939; section 7777(l), Mo.St.Ann. p. 5215, Zuehlke, who was approaching this intersection on Mrs. Rueckholdt's right, had the right of way and was under no duty to stop or check his speed at least until he saw or by the exercise of the highest degree of care could have seen that Mrs. Rueckholdt would continue into and across the intersection without yielding the right of way. While the right of way of the motorist entering an intersection from the right, is not an absolute right, certainly there is no duty to stop (as this instruction literally requires) at every street intersection. Stakelback v. Neff, Mo.App., 13 S.W.2d 575; Moore v. Fitzpatrick, Mo.App., 31 S.W.2d 590; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., Mo.App., 67 S.W.2d 793; Bramblett v. Harlow, Mo.App., 75 S.W.2d 626; Crane v. Sirkin & Needles Moving Co., Mo.App., 85 S.W.2d 911; Sullivan v. Union Electric L. & P. Co., 331 Mo. 1065, 56 S.W.2d 97. According to Zuehlke's testimony, his car was the first to enter the...