Van Horn v. Union Fuel & Ice Co.

• Decision Date: 15 September 1930
• Docket Number: No. 21214.,21214.
• Citation: 31 S.W.2d 262
• Parties: VAN HORN v. UNION FUEL & ICE CO. et al.
• Court: Missouri Court of Appeals

31 S.W.2d 262

VAN HORN v. UNION FUEL & ICE CO. et al.

No. 21214.

St. Louis Court of Appeals, Missouri.

September 15, 1930.

Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.

"Not to be Officially Published."

Action by Mabel Van Horn, a minor, by Herman Van Horn, her next friend, against the Union Fuel & Ice Company and another. Judgment for plaintiff, and named defendant appeals.

Affirmed.

See, also, 31 S.W.(2d) 260, 265.

John T. Sluggett, Jr., and E. P. & R. C. Brinkman, all of St. Louis, for appellant.

Fred Berthold and Emery W. Chase, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The trial, with a jury, resulted in a verdict in favor of plaintiff against defendant Union Fuel & Ice Company for $4,000, and in favor of defendant Charles Woodward. Judgment was given accordingly, and defendant Union Fuel & Ice Company appeals.

Plaintiff received the injuries for which she sues in an automobile collision, which occurred on the St. Charles Rock road, in St. Louis county, on the morning of October 27, 1928. The collision occurred at the east end of a viaduct. Plaintiff was riding in an automobile, an Overland sedan, belonging to and being driven by her father, Herman Van Horn. She was riding in the front seat with her father and her sister Myrtle. The automobile in which she was riding was proceeding east. A truck belonging to the appellant, and being driven by appellant's chauffeur, and a Ford coupé belonging to and being driven by defendant Woodward, were proceeding west. It seems that the Ford coupé was endeavoring to pass the truck on the left. When the three vehicles arrived at the east end of the viaduct, the truck collided with the coupé, and thereby caused the coupé to collide with the automobile in which plaintiff was riding. Thus plaintiff received the injuries for which she sues. There is a guard rail about 3½ feet high, supported by concrete posts, on each side of the viaduct where the collision occurred. The car in which plaintiff was riding was close to the south guard rail at the time of the collision.

Plaintiff, testifying in her own behalf, described the accident as follows: "I first noticed the truck coming down the road, and the Ford pulling out to pass it. The left side of the truck was near the center of the road, and just about the time the Ford was about to pass the truck, the truck moved to the left, and almost instantly the Ford came toward our car. I saw the impact or collision between the truck and the Ford. At the time of the impact between the truck and the Ford the truck was very close to the center line of the road. The edge of the truck was over south of the center line. After the truck hit the Ford, the Ford came directly for the front of our car. The collision was very violent. After I recovered consciousness I observed that our car was suspended in the air. The back part of it was on a post. The front part was on the ground."

Plaintiff's testimony was corroborated by her father and sister and a number of other witnesses testifying in her behalf.

Defendant Woodward, testifying in his own behalf, described the accident as follows: "I was driving behind the truck. I followed it quite a long while, and several times tried to pass it but couldn't make it. The truck would crowd over and keep me from getting by. I would sound the horn but the truck would crowd over and I would have to fall back behind it. I saw a place where I thought I could get around the truck, and where there was room enough for me to make it. The automobile in which plaintiff was riding seemed so far away that I thought I could get around the truck so I started to go around it, and I sounded my horn. The truck was on the black line marking the center of the road, and seemed to be crowding it. I tried to make it around the truck and just as I got alongside of it it swerved to the left and hit my car, with the wheel, on my right front fender, and knocked my car into the Van Horn car headon, and lifted the rear end of the Van Horn car up on the second post of the viaduct; then the truck tore right on through, dragging my car around a piece, and went right on to the head of the viaduct."

Appellant assigns error here upon the giving of plaintiff's instruction No. 2, as follows: "The court instructs the jury that if you find from the evidence that as the truck of defendant Union Fuel & Ice Company approached the automobile in which plaintiff was riding the defendant Union Fuel & Ice Company, through its chauffeur, failed to drive the truck as close to the right hand side of the road as practicable, and that such failure directly caused or contributed to cause a collision between the truck and the automobile of defendant Woodward, and that as a direct result of such collision the automobile of defendant Woodward collided with the automobile in which plaintiff was riding, and that the collision with the automobile in which plaintiff was riding was caused by the carelessness and negligence of the defendant Union Fuel & Ice Company, through its chauffeur, in striking the automobile of defendant Woodward, and that as a direct result of such collision plaintiff was injured, your verdict must be for the plaintiff and against the defendant Union Fuel & Ice Company."

Appellant complains of this instruction on the grounds (1) that it authorizes a recovery for general negligence, and does not require the jury to find that the collision resulted from any of the specific acts of negligence pleaded; and (2) that it assumes that the truck of defendant company struck or ran against the automobile of defendant Woodward. Appellant bases this complaint upon the latter clause of the instruction, requiring the jury to find "that the collision with the automobile in which plaintiff was riding was caused by the carelessness and negligence of the defendant Union Fuel & Ice Company, through its chauffeur, in striking the automobile of defendant Woodward." The effect of the language of this clause, read alone, is not quite clear, but, when read in connection with the...