Spelky v. Kissel-Skiles Co.
| Decision Date | 06 December 1932 |
| Docket Number | 22125 |
| Citation | 54 S.W.2d 761 |
| Parties | SPELKY v. KISSEL-SKILES CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.
“ Not to be officially published.”
Action by Sylvia Spelky against the Kissel-Skiles Company, a corporation and another. From an order granting a new trial after a verdict and judgment for named defendant, it appeals.
Affirmed.
Wilbur C. Schwartz and J. E. Gragg, both of St. Louis, for appellant.
Karl M. Vetsburg and Lester M. Gallant, both of St. Louis, for respondent.
This is an appeal by the defendant from an order granting a new trial after a verdict and judgment for the defendant. Referring to the respondent as plaintiff and to the appellant as defendant, the history of the case runs thus:
Plaintiff’s petition charges that defendant was engaged in the business of letting automobiles for hire to others. That on the day mentioned in the petition, to wit, August 12 1928, one Hoffman hired a five-passenger automobile from the defendant for the use of himself and his guests, and that thereafter, on the same day, the plaintiff, while riding as a guest of Hoffman in the automobile operated by Hoffman, received an injury by collision. It is then charged as negligence that the automobile was not fit for the purposes for which it was hired; that the accelerator was defective, in that when pressure was withdrawn from same it would become stuck and cause the machine to "race," and, instead of the machine slowing up and stopping, it would move forward at an unexpected rate of speed. It is also alleged that the brakes were defective, and that by reason of such situation the injury to plaintiff occurred.
The answer is a general denial. The suit originally contained the name of Hoffman as one of the defendants, but before trial plaintiff dismissed as to him, and the case proceeded against the appellant, defendant.
The point on appeal is whether the court was correct in granting a new trial because of its refusal to give plaintiff’s instruction C. This instruction is very lengthy and covers the case both as to defective brakes and defective accelerator, and the court allowed the case to go to the jury only on the question of defective brakes.
In that instruction it was sought to tell the jury that under the law one who lets an automobile for hire to the public owes the duty of exercising ordinary care to furnish an automobile which is reasonably fit for such use, and to use ordinary care to avoid the letting of an automobile with defects calculated to injure persons who ride in or who come in contact with same, and that if the jury should believe from the evidence that the injury resulted as the result of the accelerator not working, being defective in that it would not release when pressure was taken off of same, or the brakes not working, and that "if the jury should find and believe from the evidence that because of either or both of said defects, if any, said coupe was unfit for the purpose for which it was hired by said Hoffman, as aforesaid; that defendant Kissel-Skiles Company at the time of the hiring of said coupe by said Hoffman knew, or by the exercise of ordinary care could have known of such defects, if any, or either thereof, and that, by reason of such defects, if any, or either thereof, said Ford coupe was unfit for the purpose for which it was hired by said Hoffman, as aforesaid; that said defendant Kissel-Skiles Company was negligent in so hiring said defective Ford coupe to said Hoffman, if you find it was defective; and if you further find and believe from the evidence that such negligence, if any, of defendant Kissel-Skiles Company directly and proximately caused or contributed to cause said collision, if any, and said injuries, if any, then plaintiff is entitled to recover and your verdict must be for the plaintiff."
Now, then, if there is any evidence tending to prove that the accelerator on the automobile was in any way defective when same was rented and delivered to Hoffman, or any evidence tending to prove that the accelerator could have been known to be defective by a reasonable inspection before the automobile was rented and delivered, or that by the exercise of ordinary care the defendant could have seen said defects, then the instruction should have been given.
The court, upon a review of the case on the motion for new trial, concluded that there was sufficient evidence to justify the giving of this instruction. It must be borne in mind that the trial judge during the trial of a case must shoot on the wing; but when examining the motion for new trial in the calm of the judicial chambers he is afforded an opportunity to take a steady aim.
We review the case on two...
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