Stelmach v. Saul

• Decision Date: 07 June 1932
• Docket Number: No. 21962.,21962.
• Citation: 50 S.W.2d 721
• Parties: STELMACH v. SAUL.
• Court: Missouri Court of Appeals

50 S.W.2d 721

STELMACH v. SAUL.

No. 21962.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Appeal from St. Louis Circuit Court; Chas. W. Rutledge, Judge.

"Not to be officially published."

Action by George Stelmach against Elmer Saul, doing business as the Holly Hills Creamery Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Ely & Ely, of St. Louis, for appellant.

Hay & Flanagan, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff in an automobile collision which occurred at the intersection of Coronado and Wilmington avenues, in the city of St. Louis, on July 31, 1929. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,750. As a condition for the refusal of a new trial, plaintiff remitted the sum of $1,250; and, from the judgment thereupon entered for plaintiff for $2,500, defendant has duly appealed.

The negligence pleaded and relied upon by plaintiff was excessive speed and the violation of the humanitarian rule. The answer was a general denial, coupled with a plea of contributory negligence. The reply was in the conventional form.

Coronado avenue runs north and south, and Wilmington avenue east and west, the former being twenty-five feet and the latter thirty-five feet in width. Plaintiff was driving westwardly on Wilmington avenue in a Ford roadster, while defendant's truck was going northwardly on Coronado avenue. The truck was being driven by one Henry Bolte, a driver in the regular employ of defendant.

Plaintiff's testimony was that, as he approached Coronado avenue, his view to the left was largely obstructed by a growth of high weeds on a lot on the southeast corner of the intersection. When he was within twelve feet of the intersection, he reduced his speed to fifteen miles an hour, and sounded his horn. At that point he could look at an angle down the center of Coronado avenue for as much as eight feet beyond the south line of Wilmington avenue, but there were no automobiles in view. As he drove on past the curb line, he continued to look both to the right and to the left, but still he saw no traffic approaching. He first noticed defendant's truck when the front of his roadster was at the center of the intersection. The truck at that moment was ten feet south of the south curb line of Wilmington avenue, and seemed to plaintiff to be approaching at a speed of forty miles an hour. By the time the collision occurred, the front wheels of plaintiff's roadster were on a line with the west curb of Coronado avenue. In an endeavor to avoid a collision when he found plaintiff's car in his path, Bolte turned his truck sharply to the left, but, in doing so, he sideswiped the roadster near the left rear wheel, and drove it up over the curbing and against a lamp post, in the course of which plaintiff's injuries were received.

There is no question raised about the sufficiency of the evidence to have made a case for the jury with respect to the negligence of defendant's driver, in view of which a more detailed statement of the facts is now unnecessary. However, additional facts and circumstances will be hereinafter stated as necessity arises in connection with particular points presented for our decision.

The assignments of error go to the giving of plaintiff's instructions, the admission of evidence on the part of plaintiff, and the alleged excessiveness of the verdict even after remittitur.

Considering first the matter of the instructions, we note that defendant complains of plaintiff's instruction No. 1, by which the issue of the humanitarian doctrine was submitted, upon the ground that it should not have held the driver of the truck to the exercise of the highest degree of care when suddenly confronted with plaintiff's peril. This point has long since been decided adversely to defendant's contention. The exercise of the highest degree of care on the part of the operator of a motor vehicle while driving the same upon the highways is required by statute (Section 7775, R. S. 1929, 7 Mo. St. Ann. § 7775, p. 5197); and it has been repeatedly held that such statutory injunction extends with full force and effect to the determination of the question of negligence under the humanitarian rule. Gude v. Weick Bros. Undertaking Co., 322 Mo. 778, 16 S.W.(2d) 59; Hults v. Miller (Mo. App.) 299 S. W. 85; Bruce v. East Side Packing Co. (Mo. App.) 6 S.W.(2d) 986; Niehaus v. Schultheis (Mo. App.) 17 S.W.(2d) 603; Luck v. Pemberton (Mo. App.) 29 S.W.(2d) 197; Roark v. Stone, 224 Mo. App. 554, 30 S.W.(2d) 647; Woods v. Moffitt, 225 Mo. App. 801, 38 S.W.(2d) 525.

Next defendant assigns error to the giving of plaintiff's instruction No. 2, which submitted the issue of excessive speed. His complaint is not that there was no substantial evidence supporting that specification of negligence, but rather that plaintiff himself was guilty of contributory negligence, and that it is reversible error to submit an issue of primary negligence to the jury when the plaintiff should be adjudged to have been guilty of contributory negligence as a matter of law.

The rule upon which defendant bases his objection to the instruction is a sound one, but it fails in its application in this instance for the reason that plaintiff may not be said to have been guilty of contributory negligence as a matter of law. There are many circumstances in the case which serve to justify the course of plaintiff's conduct. He sounded his horn as he approached Coronado avenue; he slowed his roadster down to a moderate rate of speed; before entering the intersection, he looked to his left beyond the clump of weeds as far as he was able; and he looked both to his right and to his left after he passed the curb line, where looking was for the first time wholly effectual. From the time he had an unobstructed view down the street until the moment when he first saw the approaching truck, he traversed a distance of but slightly more than twelve feet, which he would have covered at the speed he was going in but little more than half a second. His opportunity to have discovered the on-coming truck is to be measured in the light of the time at his disposal. He entered the intersection far ahead of defendant's truck, and he was not bound to anticipate the driver's negligence with respect to excessive speed and inability to stop in time to avoid a collision. It might undoubtedly be argued that plaintiff was guilty of contributory negligence in point of fact for not having discovered the truck as soon as he cleared the obstruction to his left, but his evidence was by no means conclusive upon the question, as counsel for defendant would have us believe. In other words, reasonable minds might well differ about the characterization of his conduct; and such being the situation, he is not to be adjudged guilty of contributory negligence as a matter of law. Moore v. Fitzpatrick (Mo. App.) 31 S. W.(2d) 590; Lord v. Austin (Mo. App.) 39 S. W.(2d) 575; Westerman v. Brown Cab Co. (Mo. App.) 270 S. W. 142; Calhoon v. D. C & E. Mining Co., 202 Mo. App. 564, 209 S. W. 318; Hellums v. Randol, 225 Mo. App. 1092, 40 S.W.(2d) 500; Latham v. Hosch, 207 Mo. App. 381, 233 S. W. 84; Rooney v. Yellow Cab & Baggage Co. (Mo. App.) 269 S. W. 669.

The next three points have to do with the action of the court in connection with the taking of the testimony of Dr. Emmett W. McBratney, who was plaintiff's attending physician; but preliminary to an appreciation of the situation before the court in each instance complained of, a statement of plaintiff's injuries is essential.

Plaintiff sustained minor injuries to his shoulder, wrist, and knee, which largely cleared up within a period of ten days following the accident. The most serious injury was to his left side. He was confined to his bed for three weeks, during all of which time he experienced difficulty in breathing, and was forced to lie on his right side on account of the pain in the left side. Three months later he attempted to go back to work, but found that he was unable to do any lifting or heavy work such as he had done theretofore.

The trial was held on June 22, 1931, a little less than two years after the accident. Plaintiff testified that he still had pain in his side whenever he exerted himself; and for illustration he mentioned two occurrences of the previous Thursday, the one when he was compelled to drop a load of tile he was carrying when "something seemed to give way" in his side, and the other when he suffered severe pain in his side upon striking at a ball in the course of an indoor baseball game in which he was participating.

Dr. McBratney testified generally to finding the bruises...