Silver v. Westlake
| Decision Date | 14 April 1952 |
| Docket Number | No. 1,No. 42497,42497,1 |
| Citation | 248 S.W.2d 628 |
| Parties | SILVER v. WESTLAKE |
| Court | Missouri Supreme Court |
M. A. Ochsner and M. Q. Silver, St. Louis, for appellant.
George F. Heege, Clayton, for respondent.
VAN OSDOL, Commissioner.
In this action for $15,000 damages plaintiff has appealed from the judgment entered upon verdict for defendant.
Plaintiff, a boy twelve years old, was injured when the bicycle on which he and his brother Ronald, eight years old, were riding came into contact with defendant's Chevrolet delivery coupe or truck driven by defendant's employee on Ann ('Annie') Avenue near Spencer Place in St. Louis County. Plaintiff in his petition declared upon primary negligence and negligence under the humanitarian rule.
Herein upon appeal plaintiff-appellant contends the trial court erred (1) in giving Instructions Nos. 2 and 4 requested by defendant; and (2) in allowing a witness to testify on behalf of defendant, the defendant having under oath answered in the negative a question in interrogatories, propounded prior to trial, concerning the knowledge of defendant of the identity of witnesses present at the scene of the casualty. The review of the contentions of error in giving the instructions requires a careful examination of the evidence.
Ann (Annie) Avenue, a north-south street, intersects Suburban Avenue, an eastwest street. Ann Avenue, approaching from the south, 'jogs' to the westward at the intersection; and vehicles moving northwardly on Ann Avenue make a partial 'S' curve while crossing Suburban at the intersection. It is one hundred and fifty-six feet north from Suburban to the south side of an alley which approaches and intersects Ann Avenue on the east side thereof. Spencer Place approaches Ann Avenue from the west and intersects only the west side of Ann Avenue. It is a little over eighty-seven feet from Suburban north to the south side of Spencer Place. Ann Avenue is paved with concrete twenty feet in width. Shoulders three feet wide, composed of oiled earth or cinders, are on either side of the concrete pavement. A sidewalk four feet wide extends along the east side of Ann but does not extend across the alley. A two-story building, occupied by Pahl's Cleaners, is situate on the east side of Ann and south of the alley. The evidence tends to show that defendant's automobile came into contact with plaintiff's bicycle at some point on Ann Avenue north of Spencer Place, but the evidence introduced by plaintiff and defendant, respectively, is irreconcilable as to the point of collision and as to the manner in which the collision occurred.
Plaintiff testified that he was riding his bicycle in the neighborhood east of Ann Avenue. His younger brother, Ronald, was seated on the crossbar in front of plaintiff. The brother Ronald was holding on to the handle bars and both of his feet were on the right side of the bicycle. They came down the alley approaching Ann Avenue from the eastward, passed out of the alley, turned south on the sidewalk on the east side of Ann. 'I went on to the sidewalk on the shoulder, by Pahl's Cleaners.' He stopped on the shoulder, that is, the area between the sidewalk on the east side of Ann and the east edge of the pavement. The shoulder is 'cinders and oil and a lot of stuff.' He was not 'on this concrete at all.' He stopped right there 'where these two windows are.' The windows referred to are two windows in the west wall of the building occupied by Pahl's Cleaners, and apparently ten or twelve feet south of the alley. He stood there astride his bicycle for 'around five seconds.'
Plaintiff further testified, 'I was standing up and my brother was sitting on the cross-bar and then I looked this way (north) and then I looked that way (south) and then I looked theis way (north) again and there was nothing there, and my brother says, 'Look out,' * * * and I looked over there (south) and this car was coming around the corner (the curve at Suburban) and he was making a screeching sound all the time and then he came over here and he hit me.' Plaintiff said that as defendant's automobile approached from the south, 'it just zig zagged all over the place.' It was first on one side of the street and then on the other. Plaintiff's brother, Ronald, testified, supporting the testimony of plaintiff. No other witness for plaintiff testified of having observed the actual collision, although a witness for plaintiff testified that defendant's vehicle, having been driven across Suburban, veered having westward 'coming pretty close' to the fence east of a residence located on the northwest corner of the intersection of Suburban and Ann. The witness further testified there was no automobile parked south of the alley and west of the Pahl building.
Defendant's driver testified that he had stopped to visit with a friend at a point about seventy-five feet south of Suburban and then proceeded northwardly to and through the intersection at Suburban and was moving along Ann Avenue at a speed of twenty-thirty miles per hour. He said a truck was standing a little south of the alley on the east side of Ann. The truck was 'standing on the cinders.' Another truck headed south was parked on the west shoulder of the street somewhat to the north of the alley. When he was about fifty feet away, he 'first saw these two boys coming out of the alley on a bicycle.' (At another time while testifying, defendant's driver said he was about one car's length away from the south side of the alley when he first saw the boys.) The boys headed south on the other side of Ann. The driver further testified the collision occurred on the west side of the paved portion of Ann 'about two feet' from the west edge of the concrete.
Azzie Lee Hill, a witness for defendant, testified that she was sitting in a room of a house just west of where the casualty occurred. She stated she was looking eastwardly through a window, and saw the movements of the defendant's automobile and plaintiff's bicycle as they approached the point of collision and collided. She said, 'Montell (Montell Nelson, defendant's driver) came, he was coming down the street and these kids came out of the alley right across, and Montell put on the alley and it kind of pulled his car like this, and the littlest little boy was riding the bicycle, and the biggest little boy was on the rear end and when the aqccident occurred I seen end and when the accident occurred I seen and the kids pulled out in front of him * * *.' She said, 'they came right across the alley and went in front, and they didn't look to see where they were going, and Montell couldn't see them * * *.'
A deputy sheriff testified that defendant's car made skidmarks thiry-six feet in length (including the length of the car). The skidmarks started on the east half of the concrete pavement, and then veered northwestwardly across the center line to the west side of the pavement. The skidmarks extended to the point where the car was brought to a stop. The skidmarks 'were more on a straight line and then curved to the west.' The automobile was brought to a stop headed in a northwest direction approximately ten feet north of the alley. The 'biggest majority' of defendant's car had passed to the west side of the center line of the pavement. The left headlight was broken. Plaintiff was lying 'right over the edge' of the pavement and about four feet in front of defendant's car.
Plaintiff had alleged and the trial court submitted defendant's negligence under the humanitarian rule in failing to stop, slacken speed, or swerve defendant's vehicle after the driver thereof saw or by the exercise of the highest degree of care could have seen plaintiff in a position of imminent peril. Plaintiff also alleged defendant's primary negligence in driving at a dangerous rate of speed, in driving off the pavement and upon the shoulder of the street, and in failing to observe plaintiff in time to stop and slacken the speed of the automobile. The petition alleged that plaintiff and his brother were standing and holding the bicycle at a point on and along the shoulder 'midway between the alley which runs into Ann Avenue on the east side thereof and a point opposite Spencer Place where it runs into Ann Avenue on the west side thereof.'
The trial court submitted plaintiff's case to the jury upon humanitarian negligence by Instruction No. 1. The instruction hypothesized plaintiff's position of imminent peril as follows,
'The Court instructs the nJuly that if you find from the evidence that * * * said bicycle with plaintiff thereon was on Annie Avenue at or near the alleyway non the east side of said Annie Avenue and slightly south of said alley, and that plaintiff was standing astraddle his bicycle on the the shoulder off of the east side of the concrete, and that while so standing * * * he and his bicycle were struck by an automobile owned by the defendant and then and there operated by his agent and servant mentioned in the evidence, and that plaintiff thereby sustained the injuries mentioned in the evidence; and that if the July further find from the evidence that before plaintiff and said bicycle were so struck by said automobile that he and said bicycle were in imminent danger of being struck and being injured thereby by said automobile * * *.'
And the trial court submitted plaintiff's case to the jury upon primary negligence, as plaintiff had pleaded, by nInstruction No. 3, which is in part as...
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