Van Horn v. Union Fuel & Ice Co.

• Decision Date: 15 September 1930
• Docket Number: No. 21215.,21215.
• Citation: 31 S.W.2d 265
• Court: Missouri Court of Appeals
• Parties: VAN HORN v. UNION FUEL & ICE CO.

31 S.W.2d 265

VAN HORN v. UNION FUEL & ICE CO.

No. 21215.

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 Myrtle Van Horn, a minor, by Herman Van Horn, 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, 262.

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, and David B. Russell, of Clayton, 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 both defendants, for $3,500. The court required a remittitur of $1,000, and judgment for $2,500 was accordingly given. 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 Mabel. The automobile 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 Charles 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.

Herman Van Horn, called as a witness for plaintiff, testified:

"The viaduct has a fence or guard rail on each side. The guard rail is about three and one-half feet above the level of the ground. On the occasion of the accident I was driving east. I got to a point about seventy-five feet from the viaduct, and I saw the truck coming west about one hundred fifty feet from the east end of the viaduct. When I got about two thirds of the way over the viaduct I looked up and saw the Ford coupé by the side of the truck. As I neared the east end of the viaduct the truck swerved over to the left and struck the Ford and threw it just into my path. At the time the collision occurred the right wheels of my automobile were off the concrete pavement, close to the guard rail. My automobile was moving about ten miles per hour at the time of the collision. Previous to that it was moving about twenty-five miles an hour. Just as soon as I saw the Ford at the side of the truck I applied my brakes and pulled over to the right. The impact between the three vehicles was violent. When I recovered consciousness the rear wheel of my automobile was on top of a post, about two feet. It was the second post from the east end of the viaduct.

"I was rendered unconscious by the collision. When I recovered consciousness I was standing at the left side of the automobile, holding to the door. My daughter Myrtle was out of the machine when I noticed her. She was bleeding awful at the mouth; holding a handkerchief to her mouth, and fainting. She kept on fainting all the time. Somebody led her away and then I didn't see her until I met her at the doctor's office."

Plaintiff testified:

"When my father's car was about seventy five feet west of the viaduct the truck was about one hundred fifty feet east of the viaduct. When I first saw the Ford coupé it was just coming around from the back of the truck. The truck was running on the north side of the road. The left wheels were on the black line which marks the center of the pavement. It looked like the truck ran straight until the Ford was about ready to pass it and then the truck turned to the left. It turned to the left about a foot or a foot and a half, and collided with the Ford. The truck was about a foot south of the center line of the road when it collided with the Ford. When the collision occurred the Ford bounced over into our automobile. At that time our automobile was as near the south rail of the viaduct as it could be. The impact of the collision was violent.

"I was rendered unconscious by the collision. I don't know how long I was unconscious. My back hurt terrible and I had headaches. My mouth was cut on the outside and my gums were torn loose on the inside. I was nervous and couldn't sleep. Seven of my teeth were loosened; the lower front teeth. They remained loose for about three or four weeks. They have become firm in the gums now. There was a hole or cavity on the inside of my mouth. I couldn't eat anything but soup, and that was hard to eat because anything I would try to eat would go down in that cavity, and I had trouble to get it out, and it hurt. I had to keep ice bags around it for three or four days. At the present time that cavity is still there. There is a little scar on my face. My back still hurts me once in a while. Dr. T. B. Mansfield and Dr. H. C. Ritter treated me. Sometimes I sleep alright now, and sometimes I don't. I still have headaches occasionally, but not often."

Michael J. Gronek, called by plaintiff, testified:

"I saw the collision. I was driving behind the truck. The Ford coupé was right in front of me and the truck was in front of the Ford. The Ford pulled out to try to get past the truck and at that time the truck was every bit of a foot and a half on the south side of the center line of the road, and, as the Ford tried to pass, the truck turned to the south and hit the Ford and knocked it right into the Overland car, and through that it knocked the Overland on top of a post, I would judge, about three or three and one half feet high. The Overland was close to the guard rail on the south when it was struck."

Mabel Van Horn, called by plaintiff, testified:

"I first saw the Ford coupé just when it pulled out from behind the truck. After the Ford pulled out from behind the truck it was running abreast of the truck. The truck was running with its left wheels near the center line of the road....