Rudy v. Autenrieth

• Decision Date: 02 November 1926
• Docket Number: No. 19677.,19677.
• Parties: RUDY v. AUTENRIETH et al.
• Court: Missouri Court of Appeals

287 S.W. 850

RUDY v. AUTENRIETH et al.

No. 19677.

St. Louis Court of Appeals. Missouri.

November 2, 1926.

Rehearing Denied November 17, 1926.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge. "Not to be officially published."

Action by Raymond Rudy, an infant, by David E. Rudy, his next friend, against F. William Autenrieth and another, partners doing business as the Clayton Supply Company. Judgment for plaintiff, and from an order sustaining defendants' motion for new trial, plaintiff appeals. Reversed, and cause remanded.

Charles B. Morrow, Claude M. Crooks, and N. Murry Edwards, all of St. Louis, for appellant.

Clarence L. Wolff and Wilson & Trueblood, all of St. Louis, for respondents.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff in a collision between an automobile truck In which he was riding and a truck owned and operated by defendants. The verdict of the jury was for plaintiff in the sum of $3,-000. In due time defendants filed their motion for a new trial, which was sustained by the court upon the ground that error had been committed in the giving of a certain instruction at the request of plaintiff. From the order of the court sustaining defendants' motion for a new trial, plaintiff has appealed.

The negligence pleaded and submitted to the jury by plaintiff was defendants' alleged violation of the humanitarian doctrine.

The answer was a general denial, coupled with a plea of contributory negligence. The reply was in conventional form.

The evidence disclosed that on August 21, 1922, plaintiff, who was 16 years of age, was riding as a guest of his brother, Henry Rudy, in a laundry truck which the latter was driving westwardly on the north side of Clayton road, a public highway 18 feet in width. The day was dark, and the road was wet from rain which had fallen earlier in the morning. Rudy had proceeded to a point about a quarter of a mile beyond the intersection of Clayton road with North and South road, and was driving his truck at a speed of 18 to 20 miles an hour, when he observed an ice truck (which later proved to be that of defendants) coming north towards Clayton road out of a private driveway 120 feet farther west. The jury should find that her injuries were occasioned "wholly because of negligence on the part of the employés of defendant in charge of the car, as such negligence is defined in the other instructions of the court." Under the peculiar state of the record in that case, it was held that such instruction was erroneous in failing to require the jury to find that defendant was guilty of the specific negligence charged in the petition, and in authorizing a recovery if the jury should believe that defendant in any respect failed to exercise ordinary care.

But in the case at bar, as clearly distinguishable from the Stumpf Case, the instruction complained of did not purport to cover the whole case. To the contrary, the purpose of this instruction was to authorize a recovery for plaintiff, even though the jury should find that both defendants and plaintiff's brother were guilty of concurrent negligence, in the absence of any negligence on plaintiff's part contributory thereto. It is axiomatic that instructions must be read as a whole and as a single charge, and the appellate court cannot assume that the jury did not read all of them nor that they put a strained construction upon any one of them. In determining...