Wallnitz v. Werner

• Citation: 241 S.W. 668
• Decision Date: 02 May 1922
• Docket Number: No. 11165.,11165.
• Parties: WALLNITZ v. WERNER.
• Court: Court of Appeal of Missouri (US)

241 S.W. 668

WALLNITZ v. WERNER.

No. 11165.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by John Wallnitz against Frank Werner. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence T. Case, Victor J. Miller, and David W. Voyles, all of St. Louis, for appellant.

Marvin E. Boisseau and Verne Lacy, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages sustained by plaintiff, by being struck by defendant's automobile. The petition alleges that, on the 5th day of November, 1916, plaintiff was riding a motorcycle in a westerly direction on Columbia avenue on the right-hand side of said street, at or near its intersection with Brannon avenue and Old Manchester road, all of which are public highways in the city of St. Louis, and state of Missouri; that when at or near the place where said highways meet or come together, an automobile belonging to and being driven and operated by the defendant, which was proceeding in a northerly direction in the middle of Brannon avenue, started to turn east on Columbia avenue, then crossed over to the north or left-hand side of said street, and ran into and collided with the motorcycle upon which plaintiff was riding, fracturing plaintiff's left leg, and damaging his motorcycle.

The negligence alleged in the petition, and on which the case was submitted to the jury, was: First, failure of the defendant to operate the automobile in a careful and prudent manner, and at a rate of speed so as not to endanger property or the life or limb of any person, and failure to drive on and along the right-hand side of the street; second, operating the automobile at a rate of speed greater than 10 miles an hour, in violation of a certain ordinance of the city of St. Louis; third, turning a street corner at a greater rate of speed than 6 miles per hour; fourth, failure to drive as near the right-hand curb as possible when turning to the right into another street, as provided by ordinance.

The answer was a general denial, and a plea of contributory negligence, in that plaintiff failed to drive his motorcycle in a careful and prudent manner, or at a rate of speed so as not to endanger the life or property of others; driving the same in excess of 25 miles per hour; failure to keep his motorcycle under control at all times; failure to keep a vigilant watch; and failure to sound any warning of his approach,

After submitting the case to the jury under instructions, to which we shall hereafter refer, plaintiff recovered judgment for $2,000, and defendant appeals.

On the voir dire examination of the jury, plaintiff's counsel asked the jury the following question, to which defendant's counsel objected:

"Do any of you gentlemen own any stocks or bonds in any liability insurance company?"

Plaintiff was 28 years of age, and was riding a motorcycle, westwardly on Columbia avenue, and defendant, who had his brother in his automobile with him, was driving his car north on Brannon avenue. Brannon avenue runs north and south, and at its intersection with Columbia avenue, running east and west, does not proceed across Columbia avenue, but ends when it reaches Columbia avenue, and there is no continuation of the street on the north side of Columbia avenue, and directly opposite Brannon avenue.

From plaintiff's evidence, it appears that he was driving his motorcycle west on Columbia avenue, about 8 feet north of the south curb, and, as he approached Brannon avenue he swerved over to the north side, at the same time blowing his Klaxon horn, which made a loud noise, 25 or 30 feet before he reached Brannon avenue. He saw the automobile of defendant when he was about 10 feet from the north corner of Brannon avenue, and at that time the automobile was in the middle of Brannon avenue. Plaintiff was going about 10 or 12 miles an hour, and defendant's car was then near the south curb line of Columbia avenue. Plaintiff slowed down, and swerved over to the north side of the street, and did not see the automobile any more until he was struck. At the time plaintiff was struck he was about 8 feet from the north curb of the intersection of Columbia avenue and Old Manchester road, the Old Manchester road crossing Columbia avenue in a northeasterly and southwesterly direction. Brannon avenue is about 48 feet wide, and the other street about 78 feet wide. Plaintiff states the automobile was going 20 or 25 miles Tier hour.

On cross-examination, plaintiff states that as he approached Brannon avenue he was going about 10 miles an hour, and when he saw the automobile he slowed down to about 8 miles an hour. He says he could have stopped his motorcycle at a distance of 10 feet, but that he did not apply his brakes or clutch because he did not think he was going to be struck. He then states that he did apply his brakes, but did not make a sudden stop; that he did not want to stop because he did not expect the automobile to continue straight north across Columbia avenue.

Mrs. Clemens, a witness for plaintiff, testified that she lived in the neighborhood where the accident occurred, and that while standing in her back yard she saw the motorcycle first, and then the automobile come from Brannon avenue and strike the motorcycle. She did not know the rate of speed, but thought the automobile was going the faster of the two vehicles. She says the motorcycle at the time was on the extreme north side of Columbia avenue, and that the automobile was going northeast after it turned front Brannon avenue.

It appears from the evidence of defendant that he was going north on Brannon avenue, and as he approached Columbia avenue he was traveling about 10 miles per hour. As he came into Columbia avenue, he threw out his clutch, slowed down the machine, and was going about 6 miles an hour when he reached Columbia avenue. He then proceeded around that corner, and started turning in a northeasterly direction. When he got 4 or 5 feet north of the south curb, he heard the motorcycle coming, and looked and saw it about 125 feet east. He noticed plaintiff turn south as if to pass in the rear of his automobile. There not being sufficient room in the back of defendant's machine for him to pass, he says he thought the best thing he could do was to go ahead. He put the automobile in low, and started straight north across Columbia avenue, when he says plaintiff then swerved to the right and ran in front of his automobile. He says the speed of the motorcycle did not diminish at any time until it was struck by his car.

Defendant's brother testified that the motorcycle was coming at least 35 miles an hour. Certain ordinances of the city of St. Louis were introduced in evidence.

I. Defendant complains of the failure of the court to give a certain instruction requested by him, which instruction placed upon the plaintiff the duty of exercising the highest degree of care, instead of ordinary care, in operating the motorcycle. Error is also urged on account of the court permitting plaintiff's counsel to examine the jury on its voir dire as to whether or not any member of the jury owned any stocks or bonds in any insurance company, and certain other errors, which will be noted in the opinion if deemed necessary to a proper disposition of the case.

II. We shall first dispose of defendant's contention that subdivision 9 of section 12 of the Motor Vehicle Act (Laws of 1911, page 322), requiring persons owning, operating, or controlling automobiles to exercise the highest degree of care, includes by necessary implication a motorcycle.

Section 3 of this act defines a "motor...