Schreiber v. Andrews

• Decision Date: 08 November 1921
• Docket Number: No. 16660.,16660.
• Citation: 234 S.W. 862
• Parties: SCHREIBER v. ANDREWS.
• Court: Missouri Court of Appeals

234 S.W. 862

SCHREIBER v. ANDREWS.

No. 16660.

St. Louis Court of Appeals. Missouri.

November 8, 1921.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by K. E. Schreiber against W. H. Andrews. Judgment for defendant, and plaintiff appeals. Affirmed.

John C. Robertson, of St. Louis, for appellant.

J. H. Malugen, of Bonne Terre, for respondent.

ALLEN, P.

This is an action wherein the plaintiff seeks to recover for damage alleged to have been caused to his automobile by reason of the alleged negligence of the defendant in driving the latter's automobile against that of plaintiff. The damages are laid at $340 in the petition. The trial below, before the court and a jury, resulted in a verdict and judgment for the defendant, from which the plaintiff prosecutes this appeal.

Plaintiff is a resident of the city of St. Louis, and defendant a resident of Bonne Terre, St. Francois county, Mo. On July 9, 1919, plaintiff was driving his automobile south on Grand avenue in the city of St. Louis, approaching the intersection of that street and Russell avenue, following a street car. It appears that the street car stopped to take on or discharge passengers, and that plaintiff stopped his automobile behind the car, or near the rear thereof, whereupon his automobile was struck from the rear by defendant's automobile. Plaintiff testified that when he stopped his automobile he put out his hand as a signal to drivers following him; that his automobile had been standing still for at least 25 seconds before defendant's automobile struck it; and that he did not pass defendant's automobile prior to the collision. And he testified that after the collision defendant stated that the collision occured because the brakes upon his automobile were in poor condition, and that he (plaintiff) investigated the brakes upon defendant's machine and found that defendant "practically had no brake power on his car."

Plaintiff further testified that he told defendant that the "proper proceeding would be to report the matter to the police," but that defendant "begged that this be not done, as he did not want to worry his family, and stated that he would gladly pay for the damages caused by the collision," and that he then told defendant that "he would be required to sign a statement." It appears that plaintiff prepared a written statement which defendant signed after an unsuccessful attempt to find a notary public in order that defendant might' make oath thereto. This statement was introduced in evidence, and is as follows:

"This is to certify that I have caused the collision with the automobile of Mr. K. E. Schreiber on Grand avenue, of this city, being unable to stop, due to my brakes being in bad condition. I agree to pay for the cost of repairing rear axle and any other injury to the car."

Plaintiff's testimony is corroborated in the main by that of his brother, who was with plaintiff in his automobile, though this witness, who remained but a few minutes after the collision, did not say that plaintiff made an examination of the brakes on defendant's automobile, nor did he testify as to whether plaintiff's automobile passed defendant's automobile shortly prior to the collision.

A passenger on the street car testified that plaintiff's automobile had been stopped for "a minute" before the collision, and that if plaintiff's automobile passed that of defendant before the collision he did not see it.

There is considerable testimony as to the cost of repairing plaintiff's automobile, which we need not set out at length. Plaintiff testified to an outlay of $170.70. Of this $30 was for hiring an automobile while plaintiff's automobile was out of service, and $10 for towing charge. Defendant at one time offered to pay the amount of the original estimate, said to have been made from an "outside examination," for repairing the damage caused by the collision, viz. $85. Plaintiff's automobile wag an old one, a "1913 car"; and the evidence is somewhat indefinite as to the amount of damage actually caused thereto by the collision.

Defendant, as a witness in his own behalf, testified that just prior to the collision plaintiff's automobile passed his automobile and then stopped' very suddenly in front of defendant's automobile, behind a street car; and that plaintiff gave no signal that he was going to stop. And defendant's testimony tends to show he was proceeding slowly, and that the cause of the collision was the sudden stopping of plaintiff's machine so close in front of that of defendant that the latter was unable to stop. Defendant said that the brakes on his machine were in good order: that he did not tell plaintiff that they were not in good order; and that plaintiff did not examine them. Defendant admitted that he signed the statement quoted above, but stated that plaintiff threatened him; that he was excited at the time and wanted to get away; and that he did not know "there was anything in there about brakes." He further said:

"I told him who I was, and where I lived, and I wanted to do right and fair, that it was just an accident, but he didn't seem to have any confidence in me."

On cross-examination he testified, in substance, that when he attempted to stop he did not succeed in getting his hand on the brake lever; that he guessed that he "must have taken hold of the gear shift lever." He stated, however, that he thought that he did not move the gear shift lever at all, and said, in substance, that if plaintiff "hadn't got so close" to him he might have avoided the accident if he had grasped the proper lever.

Appellant's learned counsel frankly states in his brief...