Titworth v. Kuehn

• Decision Date: 21 June 1929
• Docket Number: No. 20604.,20604.
• Parties: TITWORTH v. KUEHN.
• Court: Missouri Court of Appeals

18 S.W.2d 127

TITWORTH v. KUEHN.

No. 20604.

St. Louis Court of Appeals. Missouri.

June 21, 1929.

Rehearing Denied July 1, 1929.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Ethel Titworth against Charles A. Kuehn, doing business as the Charles A. Kuehn Floral Company. From an order granting plaintiff's motion for a new trial after a verdict for defendant, defendant appeals. Affirmed and remanded.

Rassieur & Goodwin, of St. Louis, for appellant.

Jesse T. Friday, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages to recover for personal injuries. Plaintiff received her injuries while in an automobile truck driven by her husband, when said truck was struck by a truck belonging to defendant, at the intersection of Newstead and McPherson avenues in the city of St. Louis.

Plaintiff's husband was driving the truck southwardly along Newstead avenue at said street intersection. She was sitting on the extreme right side, a cousin of hers was sitting in the middle, and her husband, the driver, was sitting on the left or east side. When they were almost across the street intersection, their truck was struck by a truck driven by a chauffeur of defendant.

The petition alleged five grounds of negligence: First, excessive speed; second, failure to slow down at the approach of the intersection of the streets; third, failure to warn; fourth, violation of the humanitarian doctrine; fifth, defective brakes on the defendant's truck.

The answer was a general denial and a plea of contributory negligence on the part of plaintiff and plaintiff's husband. The contributory negligence plea contained several specific assignments of contributory negligence which it is unnecessary to set out in detail at this time. The reply was a general denial.

Plaintiff asked and was given only one instruction, and that on the measure of damages. There were several instructions given at the request of defendant. There was a verdict for defendant and plaintiff's motion for a new trial was sustained upon the ground that the court had erred in giving improper instructions on behalf of defendant. From this order defendant in due time and proper manner has brought its appeal to this court.

The evidence as offered on the part of the plaintiff was to the effect that she was in an automobile truck with her husband and cousin at the time she was injured. From the best we gather from the record they were junk dealers or something of that character. Plaintiff's husband was unable to write, and he took his wife with him on these trips for the purpose of making out the checks and attending to matters of this kind. The cousin was not a witness at the trial, and, while there is some evidence that he worked for plaintiff's husband, it is not clear in just what capacity he was employed. While they were driving south over Newstead avenue at this street intersection, plaintiff's husband was operating the truck, and, when he drove up even with the north curb of McPherson avenue, which runs east and west, he stopped his truck. Plaintiff and her husband looked east and west on McPherson avenue and saw nothing approaching from the east, but did see defendant's truck approaching from the west at a distance of about 100 feet west of the street intersection, and coming east at a rate of speed of about 25 miles per hour. The driver of the truck in which plaintiff was riding started the truck across the street and continued to drive across the intersection at the rate of about 10 miles per hour. When the truck had reached the south side of McPherson avenue, or just as it was starting to leave the intersection, defendant's truck struck the truck in which plaintiff was riding, near the cab or front end, and then swung south and stopped near the west curb of Newstead avenue, just south of McPherson. As a result of the collision, plaintiff received injuries which it is unnecessary to refer to because no question is raised about such on this appeal.

Plaintiff in her testimony frequently refers to the truck in which she was riding as "our truck," "my husband's truck," and sometimes as "my car." The evidence discloses that the driver of defendant's truck stated immediately after the accident that his brakes did not work and he was unable to stop the truck. The evidence as offered by plaintiff was to the effect that the street was dry on the occasion of the accident. Plaintiff's husband testified that the truck belonged to him, and that he had taken his wife with him on these trips for several years for the purpose of writing checks and doing things of this character that he, being uneducated, was unable to do; that on this particular occasion he was taking her home at the time the accident occurred.

The defendant's evidence does not vary materially from that offered by plaintiff, except that the driver denies he was traveling at the rate of speed which plaintiff says he was traveling. He also says there was some snow and ice left on the street as a result of a storm which had occurred a few days prior thereto, and that, while plaintiff's husband started across the street at the rate of speed of about 10 miles per hour when he had almost crossed McPherson and apparently shifted gears, his truck came to almost a complete stop, and that, while he expected to be able to swing to the north and go around this truck, he noticed an automobile approaching him from the east and directly in front of him and to the south of the center line of McPherson avenue. When he saw this he realized he could not pass behind the truck in which plaintiff was riding without a collision with the on-coming car. He then swerved his truck immediately to the right, or in the same direction in which the truck in which plaintiff was riding was going,...