Steigleder v. Lonsdale

• Decision Date: 10 July 1923
• Docket Number: No. 17870.,17870.
• Citation: 253 S.W. 487
• Parties: STEIGLEDER v. LONSDALE et al.
• Court: Missouri Court of Appeals

253 S.W. 487

STEIGLEDER v. LONSDALE et al.

No. 17870.

St. Louis Court of Appeals. Missouri.

July 10, 1923.

Rehearing Denied July 20, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by R. L. A. Steigleder against John G. Lonsdale and others, as executors of the estate of John T. Milliken, deceased. Judgment for plaintiff, and defendants appeal. Affirmed, on condition that plaintiff enters a remittitur; otherwise reversed and remanded.

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

Salkey & Jones, of St. Louis, for respondent.

NIPPER, C.

Plaintiff recovered judgment against defendants for $2,500 for injuries sustained by him when an automobile in which he was riding was struck by an automobile truck driven by one of defendants' employés. The accident occurred on October 28, 1920, at the intersection of Delmar and Goodfellow avenues, in the city of St. Louis.

The negligence upon which the case was submitted to the jury was: First, failure of the driver of the automobile truck to sound a signal or give a warning of his approach when approaching a public street crossing, in violation of a certain ordinance of the city of St. Louis; second, excessive speed; and, third, primary negligence. Plaintiff relied upon excessive speed in violation of an ordinance as well as under the common law. From the above-mentioned judgment defendant appeals.

Plaintiff is president of a bank in Oklahoma. On the above-named date he was in the city of St. Louis, and was asked by one John Moresi to ride with him as a passenger. About 3 p. m., Moresi. was driving a five-passenger Dodge touring car east on Delmar avenue. When he reached a point where Goodfellow avenue intersects with Delmar avenue on the north, he turned his automobile to the left and north to enter Goodfellow avenue and proceed north thereon. He was going very slowly, about 5 miles per hour, as he made the turn. The driver held out his hand and gave warning that he was going to make a turn. The plaintiff was riding in the front seat with him and on the right side thereof. There are two street car tracks on Delmar avenue, running east and west. From plaintiff's evidence it appears that when the driver of the automobile had crossed or about crossed over the north rail of the north track, and within about 20 feet of Goodfellow avenue, the automobile was struck by the truck being driven westward on the north side of Delmar avenue. Both plaintiff and the driver of the automobile testified that there was no warning signal of any kind given by the driver of the truck before it' struck Moresi's car and inflicted injuries upon plaintiff. Moresi says the truck was about 90 to 100 feet away when he first noticed it and plaintiff says it was about 100 or 150 feet away. Both plaintiff and Moresi state that the truck was coming toward them at a rate of speed of about 30 miles per hour when they first noticed it, and increased its speed to 35 or 40 miles per hour by the time it struck Moresi's car. The driver of the truck made no effort at any time to slacken the speed of or change the course of the truck until he was within 4 or 5 feet of the automobile.

Plaintiff was helped to a nearby drug store, where he received emergency treatment, and was then taken to St. Luke's Hospital. He stayed there for four or five days, and then went to his home in Oklahoma, and was confined to his room for about eight days. He suffered no permanent injuries, but Prom the evidence of the physician who treated him it appears that he suffered from a contusion and abrasion on both outer legs and back and an abrasion of the forehead. The injuries to the legs and back consisted of injury to the muscles and tendons. The skin was broken on the forehead, and the doctor testified that he suffered intense pain. As president of the bank, plaintiff received a salary of $350 a month. He paid the doctor in St. Louis $25, $60 to St. Luke's Hospital, and $60 to nurses. Plaintiff testified that he was temporarily paralyzed from his hips down immediately after he was struck.

Plaintiff stated that he knew when he saw the truck coming he was going to get hit, and that the truck was upon him in about one second after he saw it—Moresi says about two seconds after he saw it. Moresi also testified that he did not see the truck when he started to turn, but that he did observe a buff-colored touring car coming west. When he had started across the north track, he observed the truck coming, about 90 feet away, at a terrific rate of speed. He then tried to change his speed and get out of the way, but the truck hit him. The driver of the truck testified that he came out from behind another car and passed it at a speed of about 15 miles an hour, and slowed down to about 8 miles an hour before he struck the automobile.

It appears from the evidence of the defendants that the truck in question, at the time of the accident, traveling at the rate of speed it was going, could be stopped within three feet. The driver of the truck testified that when he was approaching this crossing he saw the car in which plaintiff was riding start to cross, and he blew the whistle of the truck and the driver of the car started to stop, and when he started on across Goodfellow avenue the driver of the automobile pulled right in front of him.

If necessary to refer to any facts more in detail, such will be done in the course of the opinion on the questions of law involved.

The alleged errors consist of the court's action in giving, at plaintiff's request, instruction No. 1, which told the jury that the failure to give a signal was negligence, as a matter of law, when Lie plaintitt and the driver both saw the truck when it was 100 to 150 feet away from the place of the collision, and that the failure of the driver to sound a signal was not the proximate cause of the accident; that there was error in instruction No. 3; and that the verdict is excessive.

Instruction No. 1 is as follows:

"The court instructs the jury that under an ordinance of the city of St. Louis, introduced in evidence, it is provided that drivers of motor vehicles of all kinds shall, when approaching a crossing on a public street, sound their signals in such a way as to give a warning to other vehicles of their approach, and if you find and believe from the evidence that the automobile truck of the defendants, which struck John Moresi's automobile, if you so find, was at the time and before said collision being run by an employé of the defendants and was approaching a crossing on a public street in the city of St. Louis, if you so find, and that said driver failed to sound a signal in such a way as to give a warning of his approach to other vehicles, and more particularly to the driver of the automobile in which plaintiff was riding (if you find he was so riding), then you are instructed that such failure to give a warning of approach is negligence; and if you further find and believe from the evidence that as a direct consequence of such negligence, if any, the plaintiff was injured, your verdict must be for the plaintiff."

There are two objections lodged against this instruction by the defendant: First, that the instruction tells the jury that the failure of the driver to sound a signal was negligence as a matter of law, and unconditionally directs a verdict for plaintiff if the jury found that defendants' driver failed to give a signal; and, second, that the evidence showed that both plaintiff and the driver saw the truck when it was from 100 to 150 feet away, and watched it continuously until it struck the automobile. Therefore they had all the notice that the statute required, and the failure to give a signal was not the proximate acause of the injury.

As to the first objection to this instruction made by the defendants, it will be observed that this instruction is based upon the violation of a certain ordinance of the city of St. Louis, which ordinance requires a driver of a motor vehicle, when approaching a crossing on a public street, to sound a signal in such a way as to give warning to other vehicles of its approach. If the driver of the truck failed to comply with this ordinance he would be guilty of negligence per se; and if such negligence was the cause of the accident the...