Rosenstein v. Lewis Automobile Co.

• Decision Date: 03 February 1931
• Docket Number: No. 21331.,21331.
• Citation: 34 S.W.2d 1023
• Parties: ROSENSTEIN v. LEWIS AUTOMOBILE CO. et al.
• Court: Missouri Court of Appeals

34 S.W.2d 1023

ROSENSTEIN v. LEWIS AUTOMOBILE CO. et al.

No. 21331.

St. Louis Court of Appeals. Missouri.

February 3, 1931.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Sarah Rosenstein against the Lewis Automobile Company and others. Judgment against defendant Gertie Rosenstein, and she appeals.

Affirmed.

Wayne Ely and Tom Ely, Jr., both of St. Louis, for appellant Gertie Rosenstein.

Max Sigoloff and A. B. Frey, both of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment against defendant Gertie Rosenstein for $4,000 for injuries received as the result of an automobile collision. A verdict was returned in favor of the other defendants.

As to the defendant Gertie Rosenstein, the petition counts on four specifications of negligence: (1) That, in violation of the State Motor Vehicles Act as well as in violation of an ordinance of the city, she failed to operate her car as close to the right-hand side of Washington avenue as was practicable; (2) that, when she saw that a collision was likely, she speeded ahead instead of turning or swerving her machine; (3) that she failed to keep her machine under proper control as it crossed the intersection; and (4) a violation of the humanitarian doctrine.

Said defendant's answer was a general denial, alleged that plaintiff was her guest and passenger, and that they were engaged in a joint enterprise—out for a ride—and that, if plaintiff's allegations of this defendant's negligence are true, which defendant denies, then plaintiff was guilty of negligence directly and proximately contributing to the collision and to whatever injuries plaintiff received; that plaintiff was seated with defendant and had the same opportunity to see, hear, observe, and discover the automobile operated by the other defendants, and that plaintiff negligently and carelessly failed to see, hear, observe, or notice said other automobile before the collision and negligently and carelessly failed to warn defendant of the approach of said other automobile and thus have enabled defendant to have avoided the collision.

Defendant assigns a number of errors, the first of which is that the court erred in not giving the instructions in the nature of demurrers to the evidence requested both at the close of plaintiff's case and at the conclusion of the whole case.

It is unnecessary to consider these demurrers separately, because, when a defendant does not stand upon his demurrer at the close of the plaintiff's case, but after the overruling of such demurrer himself introduces evidence, it becomes our duty, in considering the question of his liability, to look "to the entire evidence in the case, no matter by whom offered, nor whether the demurrer to the evidence was interposed at the close of the plaintiff's evidence in chief, or at the close of all of the evidence." Graefe v. Transit Co., 224 Mo. loc. cit. 253, 123 S. W. 835, 841; Geninazzi v. Leonori (Mo. App.) 233 S. W. 75, loc. cit. 76.

The defendant says that the peremptory instruction ought to have been granted because (1) plaintiff was guilty of contributory negligence in failing to discover the approach of the Lewis, or other car, and the condition of the traffic signal; and (2) that one of the facts essential to recovery under the humanitarian rule was absent, that the defendant had the ability with the means at hand to have averted the impending injury without injury to herself or others.

The facts essential for consideration upon the demurrers are, in substance, as follows:

The collision occurred in the intersection of Washington and Newstead avenues. Washington avenue at Newstead is 70 feet wide between building lines and 40 feet wide from curb to curb. Newstead avenue roadway at Washington avenue is 36 feet wide and between building lines is 60 feet.

The automobile owned and operated by defendant Gertie Rosenstein, plaintiff's daughter, with whom the plaintiff was riding, at her daughter's invitation, was proceeding east on Washington avenue on June 25, 1927, about 6 p. m., at which time the sun was setting. At the intersection of Washington and Newstead avenues the machine was struck by a Chandler automobile driven by defendant Ericson Lewis, the car of defendant Gertie Rosenstein was turned over on its side, and plaintiff received the injuries of which she complains.

Gertie Rosenstein's car was a Hupmobile six-cylinder car, was two months old at the time of the collision, and was in good condition. There was a "stop" and "go" signal in the middle of the street.

Plaintiff testified that the Hupmobile car operated by her daughter was the property of the latter, and that she knew nothing about the automobile; that she was riding upon the insistence of her daughter; that, when her daughter's machine reached a point about 30 feet west of Newstead avenue she observed the "Go" signal in their favor, and, when about halfway across the intersection, observed the Chandler car coming from the north, at a distance of about 30 feet and paid no further attention, because she knew everything was in her daughter's favor to go, and was looking in her pocketbook; that it appeared to her they were about halfway across when she heard the crash, and knew nothing more until she found herself in an hospital; that, when she observed the Chandler car approaching, she said nothing to her daughter, nor did her daughter say anything to her. On cross-examination she admitted she might have said something to her daughter; she was not sure. In a deposition offered in evidence, she stated she remarked to her daughter, "Gee, that guy is coming fast." At the trial she testified that she said nothing to her daughter and her daughter said nothing to her.

The plaintiff, over the objection of defendant, read portions of alleged admissions appearing in a deposition of Gertie Rosenstein, taken in her behalf before the trial, in which she testified, in substance, as follows: I was going east on Washington; the other car was going south on Newstead. Mother said it did not look like the other car was going to stop. I was driving fifteen miles per hour. When I saw the other car I just kept going east; I thought he would stop. When I said to my mother, "Isn't he going to stop?" she said, "It doesn't look like it" and I stepped on the gas; wanted to get out of the way. I saw the other automobile before I started across the intersection. The other car was about 30 feet north of Washington when I first saw it; I was about 5 feet from the intersection, and it was going about twice as fast as I was. Going at 15 miles per hour. I could have stopped my car in, I should say, 15 feet. Further on she testified that at 15 miles per hour she could have stopped within 2 or 3 feet; that it was a brand new car, just working perfectly; that the operator of the Chandler car was looking towards her car.

The plaintiff also offered in evidence the deposition of Ericson Lewis, one of the defendants, who therein testified, in substance, as follows: I was driving the Chandler car south on Newstead avenue towards Washington; I had made a stop on the north side of Delmar avenue, and made no other stop until I ran into this automobile; my maximum speed was 15 to 18 miles per hour as I went toward Washington; the car was in good working order; as I was crossing Washington avenue I was about halfway between the west curb and the center of the street; I saw the Hupmobile when I was 15 or 20 feet from the north curb of Washington, and it was 75 or 100 feet west of the intersection and traveling an estimated rate of 25 to 28 miles per hour, and it continued on, not perceptibly slackening its speed; a second or two later it indicated to me that it was going to continue on east, and at that time my front wheels were a little bit past the north curb of Washington avenue, and the other machine was about 14 feet from the intersection; when I saw the other machine was not going to stop, I put my brakes on; the other car continued east until the impact; it never changed its position, and I continued directly south; I did not turn east or west; that at the time of the impact the other automobile was from 7 to 10 feet west of the automatic signal and about 3 feet south of it.

Ida A. Crow testified in effect that she was walking west on the north side of Washington avenue, and just before she reached the corner the signal changed to "Go" for east and west traffic, and she walked across Newstead avenue; that from the rate she was going she would have time to walk across the street before the signal changed; she crossed the street and had gone two or three steps when she heard the crash.

Russell Murphy testified, in effect, that he was driving behind the Chandler car on Newstead, and, as he neared Washington avenue, he observed the traffic sign was on "Go" for north and south traffic; that at about the time of the collision the Rosenstein car was going about 18 or 20 miles an hour and the Lewis or Chandler car was going about 10 miles an hour; the traffic signal was on "Go" both before and after Lewis went into the intersection.

Sherman Landau testified that an Hupmobile automobile two months old, going at 18 miles an hour on a dry street, could be stopped within 11 feet, all those cars being equipped with four-wheel brakes; going 15 miles an hour, it could be stopped within 8 feet; going 20 miles an hour it could be stopped in 15 feet; such a car going 15 or 18 miles per hour could be turned to the right with safety to the occupants.

Defendants Lewis offered evidence, in substance, as follows:

Turner T. Lewis, who was riding in the Chandler car with his nephew, testified that when they reached a point between Washington avenue and the alley north of that street, the traffic signal was on "Go" and continued so when they entered the intersection; that the Rosenstein car reached the intersection first and continued straight...