Waller v. Graff

• Citation: 251 S.W. 733
• Decision Date: 03 April 1923
• Docket Number: No. 97675.,97675.
• Parties: WALLER v. GRAFF.
• Court: Court of Appeal of Missouri (US)

251 S.W. 733

WALLER v. GRAFF.

No. 97675.

St. Louis Court of Appeals, Missouri.

April 3, 1923.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Anna Waller against George Graff. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Conrad Paeben, of St. Louis, for appellant. H. R. Polak, of St. Louis, for respondent.

BIGGS, C.

This action for damages arising by reason of plaintiff, a pedestrian, being struck by defendant's automobile, operated by defendant at the intersection of Lynch street and Jefferson avenue in the city of St. Louis, is based on specific acts of negligence, such as excessive speed, failure to give signals, operating the automobile on the wrong side of the street, violation of certain ordinances of the city, etc. Defendant appeals from a verdict and judgment for plaintiff in the sum of $500.

By instructions all of the alleged specific negligent charges were withdrawn from the jury, save the allegation as to excessive and dangerous speed, it being alleged that the defendant was negligently and carelessly driving his said automobile at a high and dangerous rate of speed, to wit, 30 miles an hour.

Defendant first contends that his demurrers to the evidence should have been sustained, inasmuch as plaintiff charged that the speed of defendant's automobile was 30 miles an hour, whereas the best that can be said of plaintiff's proof in that regard is that the machine was being driven at the time at the rate of 25 miles an hour. There is no merit in this contention. Plaintiff's evidence tended to prove that the accident happened at the intersection of two streets in the city of St. Louis at about 5:30 in the afternoon. Under the circumstances 25 miles an hour could be found to be a negligent rate almost as readily as 30 miles an hour. It was not necessary for plaintiff to prove the 30 mile rate, as the rate of 25 miles an hour was sufficient to warrant a finding of negligence.

In submitting the cause to the jury the court gave one instruction for plaintiff on the question of liability, which told the jury that, if they found "that the defendant * * * negligently and carelessly caused said automobile to suddenly, forcibly, and violently strike and collide with plaintiff, throwing her to the pavement of the street and injuring her, then your verdict will be for the plaintiff." It was error to thus instruct the jury. The instruction is not based on any of the specific charges of negligence, and is not supported by the evidence. It permits a finding of any act of negligence and is broader than both the pleadings and the proof. The proper function of an instruction...