Selinger v. Cromer

• Decision Date: 04 February 1919
• Docket Number: No. 15355.,15355.
• Parties: SELINGER v. CROMER.
• Court: Missouri Court of Appeals

208 S.W. 871

SELINGER v. CROMER.

No. 15355.

St. Louis Court of Appeals. Missouri.

February 4, 1919.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by Hugo F. Selinger against Gertrude E. Cromer. Judgment for plaintiff, and defendant appeals. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellant.

Chas. A. Houts, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff by reason of being run upon by an automobile driven by the defendant. There was a verdict and judgment for plaintiff below, and the defendant appeals.

It is conceded that the case made by plaintiff was one for the jury. Indeed, appellant's learned counsel frankly admit that plaintiff made quite a "strong case." End no point is made as to the amount of the verdict, to wit, $5,000; it being conceded that plaintiff's injuries were very serious. The assignments of error relate alone to the instructions.

The bill of exceptions, as abstracted, is in the skeleton form, stating briefly what the evidence for the respective parties tended to show. From this it appears that on June 28, 1915, at about 6:45 p. m., plaintiff alighted from a south-bound "Southampton car," on south Kingshighway, at its intersection with Lansdowne avenue, in the city of St. Louis, after the car had stopped to discharge passengers, and started to walk directly west to the curb of Kingshighway; and that when he had taken but a few steps he was struck by defendant's automobile, which was proceeding south on the west side of Kingshighway. Plaintiff testified that he looked both ways before stepping from the platform of the car, but saw no automobile; that he heard no horn or bell, and did not see the automobile before it struck him.

The record recites:

"In addition to the plaintiff's own testimony, there was evidence by many witnesses in behalf of plaintiff, tending to show that the defendant's automobile, driven south along the west side of Kingshighway by the defendant, struck the plaintiff; that the defendant was proceeding at a high rate of speed (some witnesses say 25 to 30 miles Der hour); that the defendant did not slow down at any time before the collision with the plaintiff; that no horn or bell was sounded by the defendant; that after striking the plaintiff the defendant drove her car on across Lansdowne avenue and up on the terrace on the south side of the street; and that the plaintiff, after the collision, lay almost in the center of Lansdowne avenue, to which point he was dragged by the defendant's automobile. * * * And there was evidence tending to show that the defendant was some distance back and to the north of the street car when plaintiff alighted and started to the curb."

It is said that defendant's evidence tended to show that the defendant's automobile was about half a block north of the street car when the latter came to a stop at Lansdowne avenue; that the street car started forward when defendant was still about 10 feet to the rear thereof: that defendant had been proceeding with her automobile at about the rate of 15 miles per hour, but on approaching the street car was proceeding only about 6 miles per hour, with the power off and with her foot on the service brake; that she saw no one get off the car, "but saw the plaintiff when he was in the street, and thought there was time for him to get by in front of her automobile"; that she sounded her horn when about 10 feet behind the street car and did not sound it again after that; that her automobile was about 4 or feet from plaintiff when she saw that she was going to strike him; and that she "then got excited, tried to turn the car to keep from hitting but lost control of the car and ran the same up on the terrace on the south side of the street." And it is said that—

"There was also evidence of some witnesses riding with the defendant tending to show that the defendant sounded a horn and was proceeding at a moderate rate of speed."

The first instruction given for plaintiff is as follows:

"The court instructs the jury that if you believe and find from the evidence that plaintiff was a passenger on a south-bound street car on Kingshighway; that at or near Lansdowne avenue the car came to a stop for the purpose of discharging passengers; that plaintiff alighted therefrom and was in the traveled part of Kingshighway and walking in the ordinary and usual way toward the west sidewalk, in the exercise of ordinary care on his part, when he was struck by defendant's automobile; and if you further believe and find from the evidence that the defendant, by using the highest degree of care that a very careful person would use under like or similar circumstances, could have discovered plaintiff's position in time to have avoided striking him, and that she operated her said automobile at said time and place at a high and dangerous rate of speed, and that she failed to give a signal with her bell, horn, or other signaling devise in time to enable Ate plaintiff to avoid being struck; and if you End that her negligence, if any, in the foregoing respects, was the cause of her striking the plaintiff with her automobile—then your finding will be for the plaintiff."

Complaint is made of this instruction on the ground that it broadened the issues made by the pleadings. The petition alleged, among other things:

"That defendant saw, or by the exercise of ordinary care could have seen, the plaintiff alighting from said car and in the act of crossing said street in time to have stopped said automobile without striking the plaintiff." (Italics ours.)

It is argued that while plaintiff, in his petition, based his right to recover on the failure of the defendant to exercise ordinary care, this instruction permits a recovery if defendant failed to exercise the highest degree of care; and that the instruction is, in this respect, broader than the petition. This argument, we think, is without substantial merit. The allegation of the petition involved is one which deals merely with defendant's duty to discover plaintiff's dangerous position. And it is alleged, in effect, that by the exercise of even ordinary care the defendant could have discovered the same...