Schuetter v. Enterprise Commission Corporation

• Decision Date: 03 February 1931
• Docket Number: No. 21333.,21333.
• Citation: 34 S.W.2d 976
• Parties: SCHUETTER v. ENTERPRISE COMMISSION CORPORATION.
• Court: Missouri Court of Appeals

34 S.W.2d 976

SCHUETTER v. ENTERPRISE COMMISSION CORPORATION.

No. 21333.

St. Louis Court of Appeals. Missouri.

February 3, 1931.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Herman Schuetter against the Enterprise Commission Corporation. From a judgment for plaintiff, defendant appeals.

Affirmed.

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

Gerritzen & Gerritzen, of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment against the defendant in the sum of $2,250, in his action for damages for personal injuries alleged to have been sustained by having been struck by an automobile truck of the defendant company. The defendant in due course appeals.

Plaintiff's petition alleges that on November 15, 1927, while he was walking westwardly across North Twenty-Third street in the middle of the block between Benton and North Market streets in the city of St. Louis, he was struck and injured by the defendant's automobile truck.

Though the petition sets up various assignments of negligence, upon trial plaintiff submitted his case to the jury solely under the humanitarian doctrine.

The defendant's answer was a general denial, coupled with a plea of contributory negligence. The reply was conventional.

It is conceded that plaintiff made out a case under the humanitarian rule. There is abundant testimony to show that the plaintiff, who was a baker and worked at night, left the curb in the middle of the block, after looking in both directions, and, when he had proceeded three or four steps diagonally across the street, he was struck by defendant's truck and injured. The street at the point in question was unusually well illuminated, due to the fact that there is an oil and gasoline filling station close by, which had many electric lamps burning at the time. Visibility was such that one could readily see a distance of two blocks in either direction.

Plaintiff's testimony was to the effect that, at the moment he left the curb, looked south, and saw defendant's truck approaching then some 125 to 150 feet away, he then turned and looked north and saw a street car coming south, then distant about one and one-half blocks; that, when he had walked about ten feet from the curb he looked to the south and saw the headlight of defendant's truck a foot or two from him; that he tried to step back, but was struck by the front of the truck at the right-hand side thereof; that he heard no warning sounded at any time before he was struck.

Plaintiff's testimony with reference to the manner in which the accident occurred was corroborated by other testimony in the case. In addition thereto, there was testimony of several witnesses that the truck was examined after the accident and it was found that the glass in the right front headlight was broken and the right front fender bent down.

As to the defendant's evidence, the driver of the truck himself testified: That the truck was a Ford roadster with a truck body built on the back thereof; that along each side of this body were three wooden cleats two inches wide and three-fourths of an inch thick, one cleat near the front, one at the center, and one near the back end of the body; that, as he approached the point where plaintiff was injured, he passed a street car going in the opposite direction, and just after he had passed the car he felt a jolt "like something had fallen off the truck." He looked back to make sure that the contents of his truck were intact, then started on and got almost to the next corner when he again looked back and saw a crowd in the street, whereupon he stopped, got out of the truck, and went back to see what had happened, and found that a man had been injured. He did not see plaintiff at any time before the accident. That latter on the examined his truck and found that the front and middle cleats on the right-hand side of the machine were split back toward the rear of the truck, and he found a little blood on the middle cleat, but that the right front headlight was not broken nor was the right front fender bent.

As we have stated above, the plaintiff submitted his case solely upon the humanitarian doctrine.

Defendant here contends that the trial court erred in refusing the following instruction, numbered E, requested by it: "The court instructs the jury that if you find and believe from the evidence that at the time and place mentioned in the evidence that the plaintiff walked from the east curb of Twenty-Third street at the time and place mentioned in the evidence, directly into the right side of the body of said defendant's Ford roadster, and to the rear thereto, and in so doing he failed to pay any attention to what he was doing, or where he was walking, and negligently and carelessly permitted himself to walk directly into the rear side of said automobile, all on account of...