Willis v. Applebaum

• Decision Date: 08 April 1930
• Docket Number: No. 20969.,20969.
• Citation: 26 S.W.2d 823
• Parties: WILLIS v. APPLEBAUM.
• Court: Missouri Court of Appeals

26 S.W.2d 823

WILLIS v. APPLEBAUM.

No. 20969.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Pauline Willis, a minor, by Mrs. Ethel Willis, next friend, against Ike Applebaum, also known as Michael Applebaum, doing business as Applebaum Bros. Judgment for plaintiff, and defendant appeals.

Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Goodman & Stephenson and Freeland L. Jackson, all of St. Louis, for respondent.

NIPPER, J.

This is an action to recover damages for personal injuries sustained by Pauline Willis, a minor, six years of age. The action was brought by next friend. There was a verdict and judgment for plaintiff in the sum of $2,500, and defendant has appealed.

There were five assignments of negligence in the petition: The first assignment of negligence was that defendant negligently and carelessly failed to drive his automobile in a careful and prudent manner, and exercise the highest degree of care in so doing, and at a rate of speed so as not to endanger the life or limb of any person, including plaintiff. Second, that the defendant negligently and carelessly failed to operate his automobile as close to the right-hand curb of the street as was practical. Third, that the defendant negligently failed to sound or give any warning or signal of the approach of his automobile. Fourth, that defendant negligently and carelessly failed to keep watch ahead, or laterally ahead, of said automobile. The fifth and last assignment of negligence was based on the humanitarian doctrine.

Plaintiff requested and was given only one instruction in her behalf, and that was on the measure of damages. The defendant requested withdrawal instructions on each of the assignments of negligence set out in the petition. These the court refused to give.

Defendant contends, on appeal, that the case should be reversed because plaintiff went to the jury on all the assignments of negligence in the petition, some of which there was no evidence to support, and therefore it was error to refuse to give the withdrawal instructions.

The plaintiff's contention here is that this action on the part of the trial court did not constitute reversible error, but that, if such action was error, it was harmless.

The accident occurred near the intersection of Twentieth and Chestnut streets, in the city of St. Louis. Plaintiff and another little girl and a man named George Mitchell were standing on the southwest corner of Twentieth and Chestnut streets. As the plaintiff attempted to cross the street going north, she was struck by defendant's automobile coming from the west, and injured. She was attempting to cross the street at the regular pedestrian crossing. She had proceeded to about the middle of the street before she was struck. The evidence discloses that there was no horn or signal given by the approaching automobile, and that the automobile did not swerve either to the right or left, nor did the driver slacken its speed until plaintiff was struck.

George Mitchell, the man who was standing with the little girls on this corner, testified that he was standing there at the time for the purpose of crossing this street; that he had made about one step into Chestnut street when the girl was struck. Plaintiff left the curb before he did. He saw the automobile, and stepped back. The automobile was then four or five houses west of Twentieth street. He saw no automobile approaching from the opposite direction, and heard no horn sounded by the defendant as he approached the intersection. He also testified that defendant did not swerve his car either to the right or left before it struck plaintiff, and that there was nothing to prevent him from doing so. He saw no automobile approaching from either the east or west, excepting the defendant's car.

Willie Howell testified that he was walking west on the south side of Chestnut street when the accident occurred. Defendant's automobile passed him about the middle of the block between Twentieth and Twenty-first street, and there were no other automobiles along the south curb of Chestnut. He did not see the defendant's automobile strike the plaintiff, and he saw no other automobile on Chestnut street at the time, and no warning sound of any kind was given.

Harold Lewis testified that at the time plaintiff was struck he was sitting in a window at 2007 Chestnut street, on the north side of Chestnut street, facing east. He saw the plaintiff standing on the southwest corner of Twentieth and Chestnut, and another little girl was with her at the time. When he saw plaintiff, she was leaving the curb and starting across the street. When he first observed defendant's automobile, it was about even with his window, and was being operated about twelve feet from the south curb of Chestnut street. He did not hear a horn or any other warning signal given. The defendant's automobile was traveling about twenty or twenty-five miles per hour as it passed the window where he was sitting. The automobile ran about twelve feet after it struck plaintiff.

A portion of defendant's deposition was introduced by the plaintiff as admissions against interest, in which the defendant testified that he did not sound the horn as plaintiff started from the curb, and had not sounded it at any time before approaching Twentieth street. He claimed he was going about ten miles per hour.

The evidence on the part of the defendant consisted, first, of the testimony of John H. Gaines. He said that he was on the southeast corner of Twentieth and Chestnut streets, and saw these two little girls playing, and that plaintiff ran into the street in front of defendant's automobile. The right-front bumper of defendant's automobile struck plaintiff. He testified that defendant's car was going about ten or fifteen miles per hour, and that it was about six or eight feet from the south curb, and was about in the middle of the block when the witness first observed it. He testified that the car struck plaintiff when she was about six or eight feet from the south curb. He did not hear a horn. He stated that defendant's automobile was about thirty feet from the west curb of Twentieth street when plaintiff ran into the street.

The defendant testified that he was driving his car about ten or fifteen miles per hour as he approached Twentieth street. As he approached this street, he saw plaintiff and another little girl playing on the southwest corner. He slowed down as he approached because there was a man standing on the corner waiting to cross, and as this man went by he put his car into second gear, and that plaintiff ran...