Wulze v. Aquardo
| Decision Date | 05 June 1928 |
| Docket Number | No. 20179.,20179. |
| Citation | 6 S.W.2d 1017 |
| Parties | WULZE v. AQUARDO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Action by Molly Hope Wulze against Federico Aquardo. From a judgment for plaintiff, defendant appeals. Affirmed.
Geers & Geers, of St. Louis, for appellant.
Foristel, Mudd, Hezel & Habenicht, of St. Louis, for respondent.
This is an action for damages for personal injuries to plaintiff in an alleged automobile collision. The trial resulted in a verdict and judgment for plaintiff for $2,000, from which defendant appeals.
The pleadings are not involved. The petition charges that plaintiff was in the act of alighting from her automobile, which was parked on Vandeventer avenue in the city of St. Louis, and while so engaged, defendant negligently collided with plaintiff's machine with his automobile and injured her. The answer is a general denial, and charges that plaintiff was guilty of carelessness in not observing defendant's automobiles, one being driven by defendant's agent which was towing another of defendant's automobiles. The reply is a general denial.
The assignments of error brought forward in the brief and urged as a ground for reversal are: (1) That plaintiff was guilty of contributory negligence as a matter of law; (2) that the court erred in refusing to discharge the jury because of reference to insurance; (3) the verdict is excessive; (4) that plaintiff's instruction on the measure of damages erroneously refers to permanent injuries without evidence thereof.
The most favorable evidence for the plaintiff may be recited about as follows: The accident occurred about 7 p. m., October 24, 1925, on Vandeventer avenue, a public street, 40 feet wide, near the intersection of Olive street. Plaintiff had parked her machine against the curb on the west side of Vandeventer avenue, a north and south street; her machine facing south and being a few feet north of the alley at the rear of Olive street. Defendant was driving south on Vandeventer avenue with two automobiles, the front machine towing the rear one. Defendant, or his son, was steering the rear machine, and the first machine was operated by another son of defendant, who at the time was less than 16 years of age. There was another boy in that machine also. The distance between the two machines was about 5 feet. It was defendant's plan to tow the machine into the alley, turning eastwardly into same. While the two cars were about to pass plaintiff's automobile, plaintiff says— and in this she was corroborated by a seemingly disinterested witness named Dolan— she opened the door on the left side of her machine to alight. She had her right foot out and on the left running board; that she then looked northwardly for approaching vehicles; that she saw defendant's car approaching a few feet north of her. Intending to immediately get back in the machine, she closed the door to within a very few inches of the jamb and extending inwardly beyond the edge of the running board. She waited momentarily in that position for the automobiles to pass. The first machine passed without interference, but the rear machine which defendant was steering struck the left door of her machine, crushing her leg in doing so. She said she immediately made an outcry, but that defendant did not stop. However, it seems that under the circumstances he probably could not stop in the street, but waited until he got into the mouth of the alley and then came back to plaintiff, when plaintiff berated defendant, charging him with careless driving. She said she showed the injured leg to defendant, which she said had already begun to swell and was causing her pain.
Witness Dolan testified to about the same facts; he said he saw the injury and that plaintiff was hurt by the door crushing against her leg, being struck by defendant's rear car.
The defendant himself testified that he did not strike plaintiff's machine, but that he went back to her and that she at least was pretending to be injured; that she showed him her leg, but that he could not see any injury. Defendant said he was excited and sought to apologize to her, giving her his name; and that he advised her to see a doctor. He further said that he told plaintiff that he did not see her car at all; that he told her to see a doctor and to let him know what happened; that he may have told her that he had insurance. On further examination, he testified that he told her to "go to a doctor and let me know; I will take care of you all I can." He was then asked whether he knew that his automobile struck her and that "you were very sorry." To which he answered: "Yes; I was sorry and I wanted to see if it was true; that's all."
Defendant testified that his machine did not strike plaintiff's car, and from the distance between same could not do so. His other witnesses testified likewise. Defendant in explaining how he was towing the machine did not say whether he or the boy was at the wheel in the towed car, but said that he had fastened the towline to the right side of the rear axle of the front machine and the other end of same to the center of the front axle of the rear machine. It appears, too, that in approaching the alley to turn east, defendant encountered an on-coming automobile, and that he brought the towing car almost to a complete stop, and in doing so the rear car, from the best evidence, swerved to the left against plaintiff's automobile, causing the injury.
From what we have recited, it appears that plaintiff cannot be held to have been guilty of contributory negligence as a matter of law. It certainly cannot be said by the court that she did not act as an ordinarily prudent person would have acted under similar circumstances. That question was for the jury.
Now, as to the assignment of error that the jury should have been discharged because of the reference to insurance: In opening the case, plaintiff's counsel said that he would show that defendant walked back to plaintiff and that she then said to him: "What do you mean by running into my car when I was stopped and standing perfectly still?" And that defendant replied: "I know I turned too far; my insurance, however, will take care of you." At this point objections halted the statement. The objection was: "I object to that statement and move to discharge this panel." The court and plaintiff's counsel had a colloquy, when defendant's counsel further objected, saying the statement was highly prejudicial to...
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