Schmitt v. Shuplak

• Decision Date: 03 November 1931
• Docket Number: No. 21550.,21550.
• Parties: SCHMITT v. SHUPLAK.
• Court: Missouri Court of Appeals

42 S.W.2d 959

SCHMITT v. SHUPLAK.

No. 21550.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Rehearing Denied November 17, 1931.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Mrs. J. F. Schmitt against Wm. Shuplak. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wilbur C. Schwartz and J. Edward Gragg, both of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, who is respondent here, when struck by an automobile owned and being operated by defendant, at the intersection of Cherokee street and Pennsylvania avenue, in the city of St. Louis, Mo.

Plaintiff recovered judgment for $3,000, and defendant has appealed.

Plaintiff's petition contained seven purported assignments of negligence: (1) That defendant operated said automobile at a high, excessive, unreasonable, and dangerous rate of speed under the circumstances and so as to endanger the life and limbs of persons, particularly plaintiff; (2) that defendant failed and omitted to give a sound or signal of warning of the approach or movement of said automobile; (3) that defendant negligently and carelessly failed and omitted to swerve, slow down, or stop, his automobile so as to avoid colliding with plaintiff when defendant in the exercise of the highest degree of care would have done so; (4) that defendant saw or by the exercise of the highest degree of care could have seen plaintiff in a position of imminent peril; the fourth assignment of negligence was based upon the humanitarian doctrine; (5) that defendant negligently failed to exercise the highest degree of care to keep a watch ahead and to the side for persons and vehicles on the street and approaching the pathway of defendant's automobile; (6) that defendant negligently failed to keep a vigilant watch for persons and vehicles on the street and pathway or approaching the pathway of defendant's automobile, when by keeping such watch defendant could have seen plaintiff on the street or approaching the pathway of defendant's automobile in time for defendant to have stopped said automobile, slackened the speed thereof, sounded a warning, or swerved the automobile, and thereby have avoided striking and injuring plaintiff.

The petition also pleaded as an assignment of negligence that defendant negligently and carelessly, after striking the plaintiff as aforesaid, drove his automobile away from the place of said injury without stopping and giving his name and residence to the injured party, and without reporting the same to any police officer or police station, all in violation of a certain ordinance of the city of St. Louis.

The answer was a general denial.

Plaintiff's evidence discloses that she was injured on the 29th day of January, 1927. While she, accompanied by her daughter, was walking eastwardly on the north side of Cherokee street, and just about the time plaintiff had reached the east side of Pennsylvania avenue, and after her daughter had just stepped upon the curb, plaintiff was struck by an automobile proceeding northwardly on the east side of Pennsylvania avenue. Plaintiff testified that she lived in the 3400 block on Humphrey street, and that on the evening in question she, accompanied by her daughter, started to walk from her home to Ziegenheim's funeral parlor to view a body. Humphrey street is three blocks north of Cherokee street. Ziegenheim's funeral parlor is on Cherokee street, in the 2600 block. She said that from her home they walked south the three blocks from Humphrey street to Cherokee street, and then east on the north side of Cherokee street to Pennsylvania avenue; that they continued to walk on the north side of Cherokee street, and were on the north side when they reached Pennsylvania avenue. It was about seven o'clock in the evening when they left home. It was a well-lighted intersection where she was injured. She said that when they reached this street intersection at the northwest corner of the intersection, they saw a street car on the east side of the intersection on Cherokee street going west, and an automobile traveling alongside it; that they started to cross Pennsylvania avenue to the east at about the same time the street car started to cross it to the west. The street car and the automobile, driving parallel to it, crossed Pennsylvania avenue to the west; that when they were on the west side of Pennsylvania avenue she saw the lights of the car which afterwards struck her, and it was then over half a block south of Cherokee street. She did not see it again until after it hit her. She was struck when she was at the curbing on the east side of Cherokee street. At the northeast corner of the intersection is a filling station. After the machine struck plaintiff, it slowed down or came to a stop about the filling station. Plaintiff's daughter called to those present who might hear her to "get that man," and ran toward the machine. Plaintiff said it was a big dark closed car. The machine then drove on. A man came along and went after the machine that struck her, but was unable to overtake it.

Clara Hahn, plaintiff's daughter, testified that she lived with plaintiff, and, at the time of the accident, accompanied her mother. She stated that at the time she saw the automobile it was about 60 feet south of Cherokee street, and that Cherokee street is about 36 feet wide. She also stated that the car which struck her mother was, when she saw it, about 100 feet south of them; that the next thing she knew of the approach of the automobile was as they reached the curb at the northeast corner of the intersection; she saw the car which struck plaintiff swing around back of the street car and the other automobile; that it was the only automobile on Pennsylvania avenue at that time; that it was going fast; that no horn was sounded; that she jumped on the sidewalk; that plaintiff was at the curb and failed to get on the sidewalk. When she turned around, her mother had been hit. She heard a squeaking and rattling noise; that the machine passed and stopped at the entrance of the filling station, and the witness ran toward the car. When she had gotten to within about two feet of the car, it started away with a jerk, but she looked and got the license number, 13789; that as the driver started away he had the lights on on his machine for a few feet, then turned them off. As soon as she returned to the corner, she wrote the license...