Smith v. Gately Stores

• Decision Date: 07 January 1930
• Docket Number: No. 21003.,21003.
• Citation: 24 S.W.2d 200
• Parties: SMITH v. GATELY STORES, Inc., et al.
• Court: Missouri Court of Appeals

24 S.W.2d 200

SMITH v. GATELY STORES, Inc., et al.

No. 21003.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

As Modified on Denial of Rehearing February 19, 1930.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Stephen Smith against the Gately Stores, Inc., and another. Judgment for plaintiff, and defendant named appeals. Affirmed.

Wm. F. Fahey and Fred Armstrong, Jr., both of St. Louis, for appellant.

Harry J. Paul and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on May 4, 1927, when he was struck by an automobile driven by defendant McIntosh, an employee of defendant Gately Stores, Inc. The verdict of the jury was in favor of plaintiff, and against both defendants, in the sum of $2,800; and, from the judgment rendered, defendant Gately Stores, Inc., alone has appealed.

Although the petition contained the usual assignments of primary and secondary negligence for a case of this character, in the submission of his case to the jury, plaintiff relied only upon the operation of the automobile at a high, excessive, and dangerous rate of speed. Separate answers, but identical in form, were filed by defendants, consisting of a general denial, followed by a plea of contributory negligence. The reply was in the conventional form.

The accident occurred opposite 5800 Arsenal street, in the city of St. Louis, where stands the city infirmary, of which plaintiff, a man some 65 years of age, was an inmate. Arsenal street runs east and west, and is described in the record as a street of ordinary width, with car tracks laid in the center for east-bound and west-bound cars.

Just at noontime, on a bright, sunny day, plaintiff left the infirmary grounds, and started to walk across Arsenal street from the south to the north, opposite the gate through which he had passed. Before attempting to cross, he looked both to the right and to the left for approaching traffic, and saw two east-bound automobiles to his left and a west-bound automobile to his right, more than a block away, and running on the west-bound car tracks. Waiting until the two east-bound automobiles had passed him, he walked directly across the street, and was beyond the west-bound street car tracks, and within 2 or 3 feet of the north curb, when the west-bound automobile, which had meanwhile been turned from its original course and pulled over near the north side of the street so as to pass between plaintiff and the curb, struck him, and inflicted the injuries for which he has sued. This automobile was operated by defendant McIntosh, and the fact of his own negligence is not questioned on this appeal.

Plaintiff testified that the automobile did not appear to him to be coming very fast, although there was evidence that it was running as rapidly as 40 miles an hour, and that he thought that it was far enough away that it would not strike him before he could get across the street. He admitted on cross-examination that, after he looked from the south curb and saw the automobile approaching, he never looked again in its direction until the moment he was struck.

Whatever connection appellant had with the facts we have narrated was established, if at all, by the admission of its counsel at the opening of the trial that McIntosh was in its employ at the moment the accident occurred. No showing was attempted by plaintiff as to the ownership of the automobile, or the destination of McIntosh at the time of the collision; and both defendants elected to stand on plaintiff's case.

For its first point, appellant argues that the requested peremptory instruction at the close of plaintiff's case should have been given, upon the theory that there was nothing in the case which had the effect of fixing liability upon it for the acts of McIntosh. The sufficiency of the record upon this issue is indeed a very serious question, but the trouble is that, in the manner in which counsel have attempted to raise the point, we cannot believe that it is here for our review.

There were two defendants in the case, and the record recites that "the defendant" asked and excepted to the court's refusal to give the following instruction: "The court instructs the jury at the close of plaintiff's case that under the law and the evidence the plaintiff is not entitled to recover."

Which of the two defendants requested the instruction, the record does not show. But let us suppose, for the purposes at hand, that it was requested by appellant as the one who has brought up the bill of exceptions, since such assumption will enable us to determine the case without relying wholly upon a technicality. A reference to the form of the instruction discloses that the giving of it would have required the jury to bring in a general verdict against the plaintiff. It did not purport to tell the jury that plaintiff, as a matter of law, was not entitled to recover against defendant Gately Stores, Inc., or that he was not entitled to recover against defendant McIntosh, but instead it told them that he was not entitled to recover at all. Now there is no claim, and one could not be successfully maintained, that there was no substantial evidence of negligence on the part of McIntosh in the manner charged and submitted, so that, regardless of the state of the evidence as to the liability of appellant, which point we do not determine, there was a case for the jury at least as to defendant McIntosh, necessitating the refusal of any peremptory instruction which called for a general verdict against the plaintiff, unless plaintiff was guilty of contributory negligence as a matter of law, to which point we shall presently advert.

In this respect the situation is analogous to that which frequently arises where it is held that a general demurrer is properly overruled where the petition contains two or more assignments of negligence or counts, and one of such assignments or counts is supported by substantial evidence, even though the remainder may not be. No case from this state has...