Hodges v. Chambers
| Decision Date | 01 March 1913 |
| Citation | 154 S.W. 429,171 Mo.App. 563 |
| Parties | W. R. HODGES, Respondent, v. JAMES H. CHAMBERS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Leo S. Rassieur Judge.
AFFIRMED.
Judgment affirmed.
H. A Loevy for appellant.
(1) Respondent is directly responsible for and chargeable with his own negligence in selecting a dangerous roadway on which to walk, namely; one prepared for and only intended for use by automobiles and other vehicles, when he could and should have used the safe stairway prepared specially for use by those on foot. If he had used the stairway where he was absolutely safe, the automobile could not have struck him. And having chosen the dangerous way, he cannot recover. The general rule is that if a person knowingly puts himself in danger and is injured, he cannot recover. O'Donnell v. Paton, 117 Mo. 20; Diamond v. K. C., 120 Mo.App. 188. (2) The case at bar is just like that of a man deliberately in broad daylight walking on a railroad track towards an approaching train and making no effort to leave the track to escape injury when he could have stepped off the track and used an adjacent path or stopped at the side of the track and let the engine pass him. Phelan v. Paving Co., 227 Mo. 712; Ray v. Poplar Bluff, 70 Mo.App. 261; Hawkins v. Railroad, 135 Mo.App. 534; Boyd v. Springfield, 62 Mo.App. 456; Meyers v Railroad, 103 Mo.App. 274; Heberling v. Warrensburg, 204 Mo. 614; Cohn v. K. C., 108 Mo. 392; Woodson v. Railroad, 224 Mo. 703; Gerdes v. Foundry Co., 124 Mo. 355; Tanner v. Railroad, 161 Mo. 510; Nivert v. Railroad, 232 Mo. 645; Williams v. St. Joseph, 148 S.W. 460; Holwerson v. Railroad, 157 Mo. 231.
George S. Grover and A. R. Taylor for respondent.
The demurrer to the evidence was properly overruled. Borgner v. Ziegenheim, 165 Mo.App. 341; McFern v. Gardner, 121 Mo.App. 97; Sapp v. Hunter, 134 Mo.App. 694; Hall v. Compton, 130 Mo.App. 681.
--This is a suit for personal injuries sustained by plaintiff as a result of being struck by an automobile belonging to the defendant and being operated by his servant. The action is brought under Section 8523, Revised Statutes 1909, giving redress to one injured by the negligent operation of an automobile on, upon, along or across "public walks, streets, avenues, alleys, highways or places much used for travel." The answer was a general denial and a plea of contributory negligence. The cause was tried before the court and a jury, resulting in a verdict for plaintiff for $ 3000, and the defendant appeals.
At the time of plaintiff's injury, he was the auditor of the city of St. Louis, having his office in the City Hall, located on the west side of Twelfth street, between Market street and Clark avenue, in said city. The City Hall building is located some distance back, i. e. west, from the sidewalk extending along the west side of Twefth street. At the east entrance to the building there is a short flight of steps leading down to an asphalt driveway. The latter is a semi-circular driveway lying between Twelfth street and the building, beginning at the west curb of Twelfth street some distance north of the entrance to the building, crossing over the sidewalk, and, describing practically a semi-circle, passing around in front of these steps leading from the entrance to the building, and coming out again to Twelfth street some distance to the south. One leaving the building by way of said east entrance thereto, going directly east to the sidewalk, passes down the steps above mentioned leading from the entrance itself, crosses the asphalt driveway, passes down another short flight of steps, crosses a granitoid space between two grass plots, and passes down still another flight of steps to the granitoid sidewalk on Twelfth street. The semi-circular asphalt driveway above mentioned varies in width from about thirty-seven feet at the entrance to it from Twelfth street--i. e., its northern opening into the street--to about eighteen feet immediately in front of the entrance to the building. The evidence shows that this driveway had been built several years before the accident; that it was designed for the use of vehicles, but that it was also customarily used by pedestrians who desired to take a "short cut" from the east entrance to the City Hall in going to Twelfth and Market streets. To reach the sidewalk from the east entrance of the City Hall it is necessary to at least cross this driveway, and the evidence discloses that pedestrians, instead of going directly east to the sidewalk, frequently take this driveway in order to save a little distance.
On the evening of January 26, 1910, the plaintiff left the City Hall building by the east entrance, and, instead of proceeding directly east to the sidewalk, after descending the steps just at the entrance to the building, turned to the left and took the driveway, in order to go to the corner of Twelfth and Market streets. As he approached the northern intersection of the driveway with the sidewalk on the west side of Twelfth street, the defendant's automobile turned into this driveway from the street. The evidence is somewhat conflicting as to whether plaintiff had actually reached the crossing of the driveway over the sidewalk when the automobile struck him, but at any rate he was at or near this crossing. There is a sharp conflict in the evidence as to what occurred just prior to this time. Plaintiff testified that he was walking a little north of east when he saw the automobile coming; that acting upon the impulse to get out of its way he turned towards the north, i. e. to the left, and made a spring to get out of the way; that before he could do so he was forcibly struck by the automobile on his right arm and right side, and that the next thing that he remembered was being under the machine; that he was unconscious for a short time, and that when he regained consciousness he was some fifteen or twenty feet from the point where he was struck. Plaintiff testified that he first saw the automobile "when they whirled around the corner into the driveway from Twelfth street," and that he judged it was then about sixty feet away. There was evidence on behalf of plaintiff that the automobile was going at a "lively" rate of speed, and testimony corroborating that of plaintiff to the effect that he was forcibly struck by it and dragged some fifteen or twenty feet.
The evidence on behalf of the defendant tended to show that in entering the driveway from Twelfth street the horn on the automobile was blown, and that the machine was proceeding at only five or six miles an hour; that defendant's chauffeur saw plaintiff and thought that plaintiff heard the horn and that he was going to wait until the automobile passed by; that, however, when it got almost abreast of him, plaintiff started to cross in front of it; that when the chauffeur saw that plaintiff was going to cross the driveway, he swerved the machine slightly to the south--that is to the left--but that plaintiff then turned back to the south immediately in front of it; that he was scarcely struck at all by the machine, but that he put his hands on the front radiator and slipped down under it. The defendant testified that, as the automobile approached plaintiff, he told the chauffeur to stop, saying "that man appears to have lost his head." At the close of plaintiff's testimony defendant prayed the court to give a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court; and at the close of all the evidence defendant requested the giving of a like instruction, which was likewise refused.
The cause was submitted to the jury upon four instructions given at the request of plaintiff, and nine instructions given at the request of the defendant. Two instructions offered by defendant, other than the peremptory instructions above mentioned, were refused by the court.
Defendant assigns as error the overruling of his demurrer to the evidence; that the court erred in giving the instructions given on behalf of plaintiff, and in refusing the instructions offered by defendant and refused by the court.
As to the error assigned in overruling defendant's demurrer to the evidence, it is sufficient to say that there was clearly sufficient evidence of negligence in the operation of the machine on the part of defendant's chauffeur to make the case one for the consideration of the jury. It is true that if defendant's evidence be taken as true, it would appear that there was no negligence on the part of the driver of the machine, but that plaintiff unexpectedly stepped directly in front of the same and that the driver thereof could not avoid striking him. However this may be, plaintiff's evidence shows that the machine "whirled" into the driveway from Twelfth street at a "lively" rate of speed and forcibly struck him...
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