Wilsch v. Gleiforst

Decision Date05 February 1924
Docket NumberNo. 17977.,17977.
PartiesWILSCH v. GLEIFORST.
CourtMissouri Court of Appeals

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

"Not to be officially published."

Action by William Wilsch against August Gleiforst. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

John T. Manning, of St. Louis (James T. Roberts, of St. Louis, of counsel), for appellant,

DAUES, J.

This is an action for damages for personal injuries. The cause was tried to a jury, and from a judgment for defendant, plaintiff has appealed.

The petition alleges that plaintiff was injured by being struck by an automobile driven by defendant on the night of November 28, 1920, at the intersection of Ivory avenue and Poepping street, a street crossing in the city of St. Louis. The assignments of negligence are: First, a violation of the humanitarian rule; second, failure to warn plaintiff; third, failure to keep a vigilant watch; and, fourth, that the defendant operated the automobile at an excessive rate of speed in excess of 30 miles per hour. It is alleged that plaintiff, on foot, was crossing Ivory avenue and was struck and knocked down and injured by defendant driving an automobile, and that he suffered serious injury to his head and body and especially an injury to his spine. Damage is prayed in the sum of $7,500.

The answer is a general denial, coupled with a plea of contributory negligence. The negligence charged against plaintiff is that he was walking in a drunken condition across Ivory avenue, at a customary crossing place, with his head down without looking or listening for approaching vehicles, and that he stumbled immediately in front of defendant's automobile.

The reply is a general denial.

The defendant (respondent) filed no brief and has made no appearance in this court. Appellant's ground of appeal is embodied in the assignments of error challenging the court's action in the giving and refusing of instructions. The defendant, neither the close of plaintiffs case nor at the close of the whole case, challenged the sufficiency of the evidence to make a case for the jury on any of the assignments of negligence in the petition. Indeed, it appears that counsel for defendant, when asked by the court whether a demurrer to the evidence was to be offered stated that no such instruction was or would be submitted. So it would seem that the defendant conceded that the plaintiff made a case for the jury on the whole petition.

We need examine the record to ascertain whether plaintiff made a case under the humanitarian rule, as plaintiff's instruction submitting that issue was refused by the court. We will recite but a few facts to show that a jury case was made on this assignment. It is plaintiff's own testimony that about midnight of November 28, 1920, after visiting some friends in that neighborhood, he sought to cross Ivory avenue at its intersection with Poepping street to get a street car one block away. Ivory avenue runs north and south, and plaintiff was in the act of crossing Ivory avenue, walking east. When he reached the middle of the street, he then for the first time saw defendant's automobile about 100 feet away to the south. The machine had bright lights burning and was proceeding northwardly towards him. Plaintiff thought he had time to cross the street when he reached the middle of same. He made four or five steps east, when he says he was struck by the machine and knocked unconscious. It is his testimony that he quickly glanced again after he made the four or five steps from the center of the street, and that he then discovered that the automobile was as close as 25 feet to him, bearing down upon him. From plaintiff's own testimony it is not discernible whether he actually stopped in the center of the street, or whether he only hesitated to glance to the south. At any rate, he proceeded a few steps beyond the center of the street when he saw the machine right upon him and was struck. Two witnessess standing on the curb at the crossing corroborated plaintiff's statement to the effect that they saw the automobile as far as 100 to 125 feet from where plaintiff was then standing in the street. These witnesses testified that plaintiff seemed to stop for a moment while in the center of the street, and that the automobile apparently was not turned out of its j course to avoid striking plaintiff. There is other evidence for plaintiff from which the inference may be made that the machine swerved just as same came up to plaintiff and because of this struck him; that plaintiff seemed to be confused and jumped in the wrong direction, that is to say, that he stepped in the direction in which the machine swerved. It is in evidence that the machine at that time was going from 20 to 25 miles an hour, and that the speed was not slackened at any time, and that the automobile ran 40 to 50 feet after it struck plaintiff before it was stopped.

There was evidence for plaintiff, by the physician who examined him at the time he was taken to the hospital immediately after the injury, that he could not detect that plaintiff had consumed any alcohol, though plaintiff's contributory negligence is not to be considered here.

Defendant's testimony was to the effect that he was traveling 5 miles an hour; that he saw plaintiff in the street 100 to 125 feet ahead of him "standing with his head down"; that plaintiff was standing still in the street and darted or stumbled in front of the car just as the car was even with him; that plaintiff ran into the front fender of defendant's car. The defendant testified that the brakes on his machine were in good condition that night and that he could have stopped the car at that place under the circumstances, when the machine was going 5 miles an hour, probably within 10 feet.

So much for the facts as are necessary to dispose of the present appeal.

Plaintiff offered two instructions, the first submitting the case on the humanitarian doctrine, and the second on the measure of damages.

Instruction No. 1, as submitted, is as follows:

"The court instructs the jury that if you believe from the evidence that on the 28th day of November, 1920, plaintiff, William Wilsch, was a pedestrian crossing Ivory avenue at Poepping street, both public streets and avenues mentioned in evidence, and that on said occasion he was in a position of...

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    ...of agency was one of the fundamental issues in the case. Knodinger v. Citizens Bank of Maplewood, 300 S.W. 311; Wilsch v. Gleiforst, 259 S.W. 850; Stipel v. Piggott, 219 Mo. App. 222, 269 S.W. 942; Warder v. Seitz, 157 Mo. 140, 57 S.W. 537; Turner v. Loler, 34 Mo. 461. (7) Interrogation of ......
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    ...17 S.W. (2d) 359. (4) The court erred in giving and reading to the jury Instruction 5 given at the request of defendant Sims. Welsch v. Glieferst, 259 S.W. 850; Lewis v. Public Service Co., 17 S.W. (2d) 362; Edwards v. Lee, 147 Mo. App. 38. (5) Where one of the original parties to the cause......
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    ...Oil Co., 203 Mo. App. 404; State ex rel. Manker v. Ellison, 230 S.W. 611. (4) Plaintiff's instruction No. 1 was erroneous. Wilsch v. Gleiforst, 259 S.W. 850; Moran v. Railroad, 255 S.W. 331; Edwards v. Lee, 147 Mo. App. 38. (5) There was no evidence as to the extent of plaintiff's loss of e......
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