*1 Accordingly, Cooley applying appeal onr Rule is dismissed. and Westhws, CC., concur. foregoing opinion Bohling, C.,
PER adopted CURIAM: —The judges All concur. the court. Light George J. Felber Company, Power v. Union Electric & Leuven, Appellants, and Arthur Corporation, Robert (2d) W. 494. Defendant. 100 S. Saner, Two, 23, 1936. Division December *2 Theodore Rassieur, ap- Thomas Bond David H. Robertson for pellants. *4 Sannig Aronson for respondent. cm' Robert L. &
Gallant
'205- reassignment. Re- WESTHUES, the writer on C. This comes to Light & Power Union Electric Com- spondent, plaintiff below, sued M. Yan Leuven and Arthur Saner to re- corporation, Robert pany, injuries alleged personal to have been damages for sustained cover Upon through negligence of defendants. a trial ob- $20,000 against verdict the sum of tained a favorable the Union Company Electric and Van Leuven. The found the issues in defendant, favor of the other Saner. The trial court ordered a re- mittitur $5000, respondent consented, to which judgment $15,000. judgment for entered From the Union Electric and Yan appealed.
Respondent’s injuries were sustained as the result of a collision be- *5 Electric, tween a small belonging Ford truck to the Union and driven by Yan Leuven, and a car owned and driven Saner. The collision occurred about five P. m. day on the 22nd April, of 1931, at the inter- section of Twelfth Hickory and streets in St. Louis, Missouri. Twelfth Immediately thoroughfare running north and' south. ais main Street the northwest. runs a little Street, Hickory Twelfth Street of
north there is a bend south so Hickory Street runs due South it time, at the Street, Twelfth Hickory Street. in Twelfth Street at seventy Hickory Street, and fifty-five feet wide south about thirty feet Hickory Street Hickory Street. feet wide north of in a some- Street Twelfth crossed in width from to curb and curb At the time of southwesterly direction. northeasterly what and north to south Hickory from Street crossing collision Yan pedestrian Street. side of Twelfth walk west on the north on Twelfth proceeded had Leuven, driving car, Electric a Union on go turn, intending to west completed a Street had left-hand and Hickory Street and Hickory entering time he Street. About the Saner, traveling leaving Street, Twelfth a car driven defendant on Union car near rear Street, Twelfth struck the Electric south it causing pivot. if As end, completely around as to turn swung seriously injured him. south and west it struck and respondent’s in negligence against appellants,
The stated petition, (1) approach were: and Failure sound truck; (2) (3) city speed; violation movement excessive of a ‘‘ ordinance, pleaded which was as follows: Three. There was in full City and at mentioned, force all times herein an ordinance in the Louis, being Louis, Section of St. Revised Code S.t. provides follows, which to-wit: “ ‘Signal for Left Turn. “ operator ‘An approaching driver or an intersection a street turning thereat, with the intention of turning with the intention of permitted, around street where the shall, turning same left, angle extend his arm at an below so horizontal that the same may be seen in rear of his vehicle and shall ap- slow down and proach the intersecting street so that left side of his vehicle shall be as near as practicable to along the center line of the street which proceeding, he is beyond shall run but center of such intersection, ’ passing right thereof, turning before such vehicle to the left.
“The Light defendant Union Electric & Power Company and Leuven, Robert Yan carelessly negligently give and failed to signal arm of their intention of turning said automobile and the defendant Union' Light Electric & Power Company and Robert Yan carelessly negligently and failed to slow down approach and the intersection of Hickory Twelfth and streets so that the left side of such vehicle practicable was as near as to the center line of Twelfth Street and beyond failed run center of said intersection, pass- right turning thereof before such left;” vehicle to (4) that appellant carelessly negligently into, ran struck collided with the automobile of defendant, M. Arthur Saner. Both general filed a denial.
207 twenty- assignments under of error their Appellants have briefed disposition of a A subtopics. and a number topics main three example, For dispose others. necessarily points will number tending admitting in evidence that the court erred contend appellants another warning. Under a Van Leuven failed to sound prove that warn- a failure to sound Van Leuven’s is made that topic Again appellants of the collision. proximate cause ing not the giving trial erred in not that the assert, topic, another court under withdrawing consideration jury’s from the requested their instruction warning. ques- a Such negligence of sound charge failure to single topic. in will this under a tions be treated space in briéf Appellants considerable their contend devoted’ Saner, judgment codefendant, in that favor of the verdict any or issue involved cannot be considered as conclusive of fact appellants. Many action between and the authorities are support elementary cited It is law that a this contention. plaintiff, suing damages injuries ease, personal in this for for re sulting must, from negligence, before he is entitled to a judgment, produce against evidence that the he a judg defendant whom seeks guilty directly ment of negligence negligence such that injuries damages sought. contributed for which We are will though treat the case as Saner had not been made a defendant. Ap pellants correctly “respondent also upon state not that could recover any negligence pleaded by urged not him.” It in appellants’ is also case, brief that all the evidence in the inconsistent with physical facts, disregarded. should be attempt by We will to abide that rule. Appellants also insist that the evidence conclusively showed by truck, struck the Union Electric ear, when it was forced impact southward of the collision. In appellants their brief say:
“The force the collision caused Van Leuven’s car pivot his front wheels left in circle and strike Felber with its rear injuring end him.” justifies We think the evidence statement. Appellants that insist
that negligence various were not substantiated or, evidence, if proven, they were proximate not the cause of plaintiff’s injuries. discussing questions these be remembered that it was must not necessary appellants liable, render negligence of Van proximate Leuven was the sole cause injury. If the concurrent negligence persons of two injuries causes to a third, both are liable. Haid, ex rel. v. 76, (2d) Mo. 62 [State l. c. 402 (4).] conceded, by It is appellants, give did not warning signal. asserted, It however, that: “Van Leuven’s failure to sound give a horn or any warning of his approach was not proximate cause of the collision and Felber’s consequent injury.
“ being (1) danger of run down and needed no Felber was not in warning. “ times, (2) Saner saw Van at all so that no Leuven’s ear necessary.” may correct, be but proposition
As to the second we *7 say, law, danger as a matter of Felber not in of cannot that was be- ’ walking by appellants Felber Hickory run down car. was across attempted Street where Van drive car. Leuven to his Felber had not yet by crossed the when he was struck side street the movement of therefore, Van had, Leuven’s car. Felber path cleared the Van of “ only by Q. few Leuven’s car a feet. Saner testified as follows: Now then, "Well, gót I what occurred? A. as néar the corner of Twelfth, Hickory Street, the Twelfth and go- or at ing corner of this car that was abruptly suddenly applied north or I my made left turn and brakes, striking and turned to the I left to avoid him. saw that the driving up perceptibly man his car had that slowed and kind Q. right. of turned to the left or Now, rather to the when did he up right? slow and Well, just turn to the A. when his ear was about approaching crossing the Hickory going Street from the to north Q. the On pedestrian’s south side. the crossing, you mean? A. Yes. Q. up suddenly That is when it ? slowed A. Yes.” justified The evidence the conclusion Van Leuven cheeked the speed permit plaintiff of his to pass car the out of pathway of ear, and because he checked speed, his was struck Saner’s justified car. The facts submitting court in jury case to the charge on this of negligence, jury justly because could find that had Van Leuven sounded his horn in plaintiff may time the stopped have permitted and pass car him, plaintiff may front of or have speed accelerated passed his ahead of the ear so that it would necessary not have been for Van Leuven to slow down, and thus have A avoided the collision. second or less would have been sufficient for Van Leuven’s pathway car to have cleared the of Saner’s car. We are of opinion therefore that the evidence was sufficient to submit the question whether Van of Leuven failed to highest degree exercise the sounding in not care his horn as a of the proximity close of the ear. We are of the only evidence not failed to negligence charge
sustain the
speed,
excessive
but showed the
contrary. There
was evidence
record that Van Leuven was
driving
twenty-five
speed
at a
thirty
rate of
about
or
per
miles
intersection,
prior
hour
to the time he reached the
but the evidence
down at the
showed that he slowed
intersection and
driving
only
per
He
about ten or twelve miles
hour.
his ear
had
under control.
stopped within two
He testified he could
have
three feet at
the intersection. There was
he reached
no
after
evidence to time
Haid,
v.
contrary.
supra,
of State ex rel.
The case
cited
re-
spondent, does not support his
fact,
contention.
the evidence
showed that Van Leuven’s car was struck
he slowed up per
because
ceptively. Dr. Saner
speed
so testified.
part
Excessive
on the
Leuven,
Van
prior to the time he
intersection,
reached the
had noth
ing to
Appellants’
do with
collision.
No. 3,
Instruction
with
drawing
assignment
negligence
this
from
have
should
given.
been
Rudd,
(3)
v.
We must also negligence, rule that practicable Leuven failed to drive near as to the center line Street, prior making turn, Twelfth a left-hand should have been jury. withdrawn from the The evidence showed followed car he up tracks where he made'the turn. left-hand Whether proper place or not that for Van no drive had Appellants’ withdrawing connection with collision. instruction Calcaterra, charge given. have v. should been [Krelitz (2d) 909, l. 911 (2-3).] c. *8 city charged a of
Respondent violation a that ordinance making signal give failed arm of his intention of to that was at time, The there the a left-hand turn. evidence disclosed of The no north to the rear Van Leuven. evidence also moving traffic give signal. In Phillips not an arm v. showed that Van Leuven did (2d) 1065, court, W. Henson, 286-7-8, 326 30 this Mo. l. c.
speaking situation, a said: of similar signal of of intention language
“The the statute indicates that the right a left was intended as a warn- to turn motor vehicle to the or persons approaching from the rear. it to No doubt would have required signal approach- or warning persons wise to have a to been ing Legislature direction, the opposite from the but as did not see authority incorporate provision to a so, do we have no such into fit to by require statute construction. As the does not the statute the approaching vehicle, intersecting streets, of a motor on warn driver to persons approaching opposite from the same intersection the direc- left, tion, right of his intention to his vehicle to the turn failure give to a under such circumstances would not be negligence per se.” point plaintiff’s charged only petition
On this a violation of the negligence. and not common-law The ordinance ordinance in jury. only in evidence and read to the troduced The instruction requested damages. one on the measure of The case was, therefore, jury theory submitted to on that defendant city respect in this guilty violated ordinance and therefore was negligence. theory plaintiff’s of This was at trial.' The above Phillips applicable quotation from v. Henson is to this case and with- Appellants’ instruction unnecessary. discussion is further been, given. have assignment negligence should this of drawing not.Violate charged Van Leuven did Appellants also to to made requiring be of a turn portion the ordinance Hickory and Twelfth streets. right the intersection of the center of angles, right at as Hickory do not meet Twelfth Street Since argue, would be center, as stated, the mathematical above Hickory Twelfth streets meeting lines of point of the center It of the is obvious with the direction streets. parallel drawn go to going north to impracticable require to traffic be would making left-hand turn. center in right of the so-called mathematical so be to be construed as to absurd. Ordinances of this nature are not 93-94, Mo. l. Baking Company, 223 S. c. General v. [Stack evidence, be we need not detail In there was which this case 396.] trial, that Van Leuven for a new did case must be reversed cause the intersection, even if we consider center go not the center of the being appellants contend. was introduced that as where Evidence five or feet Van Leuven cut the corner and within six Hickory ear. Street when struck Saner’s south curb line of There evidence, charge negligence. this Ve therefore, support point may contention, what appellants’ add that we as to believe given correct, center, is considered when ordinance should be practical justice, the interest an instruction construction. guidance jury. given for should be of the indicated, respondent request As above did not the trial court give any Appellants’ of the ease. defining instruction issues refused, except proof on the burden instructions were one defining “ordinary degree and “highest another the terms care” jury any guide was submitted to the care.” case without §o the issues be determined. The case was submitted negligence alleged petition. on all the An ordinance *9 charges. A support of four introduced number of these had no with collision. causal connection Withdrawal instructions requested by appellants, which court In refused. were Crossno Association, (2d) v. 41 S. 796, 827, Terminal Railroad W. 328 Mo. 834, concisely l. c. Division One of this ap court stated the rule plicable to this case as follows:
“Where, however, plaintiff has enumerated several of neg- grounds ligence petition goes jury, in his and to the inas instant case, submitting any specific assignment instructions assign- without negligence, going jury he must be ments considered as assignments negligence made in petition, all the his if and the evi- all of them is does not sustain error to dence refuse instructions withdrawing jury assignments from the consideration of those not by proof. Applebaum (Mo. v. App.), 26 S. supported [Willis (2d) 823.]”
211 With negligence against the number of and specific charges negligence against four defendant, Saner, complicated questions arising and the posterous thereof, pre reason it is say jury intelligently just could arrive at a ver guide dict without instructions to them. court banc, This en case Dorman Railway (2d) v. East St. Louis 75 W. Company, 854, 1082, 335 Mo. indicated in such cases instructions should given clearly defining be issues. the Dorman case the de gave fendants submitted guide and the court instructions sufficient to jury. As we judgment understand the opinion, the for plaintiff would have been reversed and except remanded for the reason that instructions, given by court, defendant’s were sufficient. More Yerger is the ease of v. Smith, 338 140, Mo. S. W. (2d) 66, 75, (12-13), l. c. question etc. where the was discussed at length, some and the court concluded as follows: “It is our conclusion clearly was not advised what necessary facts it was to find in against order find Smith and Clay, plaintiff’s and that theory submit the upon failure which sought recovery against he defendants was error.” question That us, not before making but we are suggestion ought plaintiff that in cases kind a to submit instructions to jury may intelligently the end that a just arrive aat verdict. On a retrial rulings should heed the cases v. Association, Phillips Crossno Terminal Henson, Railroad v. Dorman Railway Company,
v. East St. Louis Yerger v. Smith, supra, on questions points presented indicated. Other need not be dis- injuries they pertain cussed sustained and the of the verdict. amount judgment The is reversed the cause Cooley remanded.
Bohling, (7(7.,concur. foregoing opinion PER CURIAM:—The C., is Westhues, the.judges All adopted of the court. as the concur. Moving of Sirkin at the relation Needles & State of Missouri D. Hostetter Relator, v. Corporation, Jefferson Company, S. W. Appeals. Judges St. Louis Court of the et al., (2d) 50. Two, 1936. December Division