Wilhelm v. Hersh
| Citation | 50 S.W.2d 735 |
| Decision Date | 07 June 1932 |
| Docket Number | No. 22114.,22114. |
| Parties | WILHELM et al. v. HERSH. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, St. Louis County; Robert W. McElhinney, Judge.
"Not to be officially published."
Action by Edwin C. Wilhelm against F. Hersh, wherein Edward Streit, plaintiff's employer, and the General Indemnity Exchange, employer's compensation insurer, upon their motion, were joined as parties plaintiff. From a judgment in favor of plaintiffs, defendant appeals.
Affirmed.
Wilbur C. Schwartz, of St. Louis, for appellant.
Berthold & Chase, of St. Louis, for respondents.
This is an action for damages for personal injuries alleged to have been sustained by plaintiff Edwin C. Wilhelm in a collision between a truck he was driving and an automobile owned and driven by defendant, F. Hersh. The truck was the property of one Edward Streit, by whom plaintiff was employed as a chauffeur.
The petition, which counted upon numerous assignments of statutory and common-law negligence, was filed at the instance of Wilhelm alone; and in due course defendant's answer was filed, setting up, in addition to the conventional general denial, a plea of contributory negligence.
Subsequently Streit, who was plaintiff's employer, and his insurance carrier, General Indemnity Exchange, filed their motion in the case, setting up that they had paid Wilhelm a certain amount of money, and had furnished him with valuable medical, hospital, and nursing services, under and in pursuance of the terms of the Compensation Act; that they would be required and compelled to pay and provide additional benefits to plaintiff until such time as he obtained a final judgment in the instant case, or until his claim under the Compensation Act was fully satisfied; and that they would be compelled to incur additional expense in connection with the enforcement of their right to subrogation under the act (Rev. St. 1929, § 3309 [Mo. St. Ann. § 3309]).
The prayer was that the movants be permitted to join as parties plaintiff, and to make detailed proof of the items and amounts of their expenditures as aforesaid, so that the total amount thereof might be first taken out of whatever judgment might be obtained against defendant, and said amount allotted to them in satisfaction of their subrogation rights under the act; that the motion be read and considered as a part of the petition in the cause; and that the movants, as parties plaintiff, be considered as joining in the prayer of the petition in their own behalf for the protection of their subrogation rights.
The motion was sustained by the court, whereupon the cause proceeded to trial before a jury, resulting in due course in the return of the following verdict: "We, the jury, find the issues in favor of the plaintiff, Edwin C. Wilhelm, and assess his damages against the defendant at the sum of One Thousand and seven hundred and fifty Dollars — $1,750.00."
Judgment was rendered for plaintiffs in the amount of the verdict; and, following the overruling of his motion for a new trial, defendant has brought the case to this court on appeal.
The case was submitted to the jury solely upon the question of defendant's negligence under section 7777 (g), Rev. St. 1929 (7 Mo. St. Ann. § 7777 (g), p. 5213), which reads as follows: "In municipalities, no vehicles shall be driven from private property or from an alley onto a highway, or from the side of a highway into a line of moving vehicles, unless the highway is sufficiently free from approaching vehicles to permit such vehicle to enter the line of moving vehicles without danger of collision, and the operator or driver of such a vehicle shall give warning of his intention to proceed into the line of moving vehicles by sounding his horn or whistle and by giving the signal required by the arm for turning to the right or to the left, as the case may be, and shall then proceed carefully, yielding the right of way in case of doubt to vehicles which are already in motion on the highway."
The accident occurred on September 18, 1930, at a point on the concrete highway opposite 6609 West Florissant avenue, in St. Louis county, where defendant resided. According to Wilhelm's testimony, he was driving westwardly, at a speed of approximately twenty-five miles an hour, on the north or right-hand side of the road. When he came within twenty-five or thirty feet of the point of the accident, he first chanced to notice defendant's automobile, which was parked alongside and north of the highway at a distance of five feet from the edge of the concrete. No signal of any kind or character was given by defendant indicative of his intention to move over upon the highway, and Wilhelm did not see the car start in motion at any time before the collision took place, but, as he passed defendant's automobile, he felt a violent impact resulting from defendant's automobile striking the right rear end of the truck. From the force of the impact the truck was caused to swerve and overturn, in the course of which Wilhelm's injuries were received.
Defendant admitted that he gave no signal of his intention to go upon the highway, either by putting out his arm or by sounding his horn. However, his version of the accident was that as he started his motor, he glanced back, and saw the truck two hundred and fifty feet away; that he turned and pulled out upon the highway, intending to drive to the east into the city of St. Louis; that when the front of his car got out upon the concrete a distance of two and one-half or three feet, he noticed that the truck was then only thirty feet away from him, and apparently approaching at a speed of fifty miles an hour; that he turned his wheels somewhat to the right and stopped; and that the truck ran into the left front end of his automobile, dragged it a distance of ten feet, then turned a complete circle on the highway, and upset.
Each theory of the case had support in corroborative testimony, but, inasmuch as the demurrer to the evidence is not at issue on this appeal, a statement of the facts in greater detail becomes unnecessary.
For his principal assignment of error, defendant questions the propriety of the giving of plaintiff's instruction No. 1, which read as follows:
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