Borack v. Mosler Safe Co.

• Citation: 288 Mo. 83,231 S.W. 623
• Decision Date: 07 April 1921
• Docket Number: No. 21673.,21673.
• Parties: BORACK v. MOSLER SAFE CO. et al.
• Court: United States State Supreme Court of Missouri

231 S.W. 623

288 Mo. 83

BORACK v. MOSLER SAFE CO. et al.

No. 21673.

Supreme Court of Missouri, Division No. 2.

April 7, 1921.

Rehearing Denied May 26, 1921.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by Rosa Borack against the Mosler Safe Company and others. From an order granting a new trial after a verdict for defendants, defendant Ernest J. Weis appeals. Reversed and remanded, with instructions to reinstate the verdict and re-enter judgment for defendant Weis.

W. H. Douglass, of St. Louis, for appellant.

Edw. W. Foristel, of St. Louis (James T. Roberts, of St. Louis, of counsel), for respondent.

DAVID D. BLAIR, J.

The action is for damages in the sum of $10,000 for death of the husband of respondent, plaintiff below, due to alleged negligence of the defendants. Trial by jury resulted in a verdict for the defendants Mosier Safe Company and Ernest J. Weis. The trial court sustained a demurrer to the evidence as to defendant George F. Kiesel. The trial court sustained plaintiff's motion for a new trial on two grounds:

First, "because the verdict was against the weight of the evidence"; and, second, "because the court erred in refusing to give the jury an instruction declaring the law to be that a police officer has no right by an act of his own to violate a valid subsisting city ordinance."

Defendant Weis appealed from the order setting aside the verdict and granting a new trial.

Plaintiff is the widow of Abraham Borack, a blind news vendor, who was killed on or about September 14, 1916, as a result of a blow from the tongue of a dray wagon owned and operated by defendant Weis. Said defendant was engaged in hauling material for a building being erected at the northeast corner of Broadway and Washington avenue in the city of St. Louis. In the course of this work a fence had been built around the structure between it and the curb, and a narrow sidewalk had been constructed alongside the fence for use by the public. Defendant's driver had hauled several loads of material, and in unloading the same had caused serious obstruction to traffic, because the stopping of his team and wagon at the proper place for unloading prevented passengers on the street cars from boarding and leaving the same. In the position he had theretofore assumed the team and wagon were on the north side of Washington avenue with the team to the west. Having noticed the obstruction referred to, the traffic officer on duty on that corner, directed said driver on his next trip to come in another way, that is, to come south on. Broadway and turn toward the east on the north side of Washington. By coming around in this manner the team and wagon would be stopped far enough to the east of the unloading point to avoid interference with passengers getting on and off the street cars and the movement of such cars on Washington.

In obedience to these instructions and on his next trip the driver drove his team south on Broadway, and stopped just north of the north line of Washington until he received a signal from the traffic officer. He testified that he remained there 15 or 20 minutes waiting for the congestion at that corner to be relieved. Upon receiving a signal from the officer he drove his team and wagon east on Washington, turning in a wide swing to the left of the intersection of the two streets, in order to bring his said wagon and team to a position with the left wheels close to the temporary sidewalk on the north side of Washington with the rear of the wagon at the Proper place for unloading. In making this turn one wheel of the wagon caught in the rail of the street car track, and caused a violent jerk, and one of the horses slipped and fell against the tongue of the wagon in such manner as to cause the end of the tongue to strike the deceased, who was on or near the temporary sidewalk, selling his newspapers. The injury resulted in his death. At that place the pavement was composed of wooden blocks. These were more or less slippery at all times, and particularly so at the time of the accident, because it had been raining. At that point the pavement sloped more because of the location there of a drainage sewer. It appears from the evidence that horses are liable to slip and fall on wooden block pavement at any time, and especially when the pavement is wet, and there is no way to prevent the same. All the foregoing facts were shown by plaintiff's witnesses.

An ordinance of the city of St. Louis was introduced by plaintiff, which provided that —

"A vehicle in turning to the left into another street, shall turn to the right of and beyond the center of the intersecting street before turning."

The violation of this ordinance and the careless and negligent driving and management of the team by the driver constitute the main charge of negligence in the petition. The (petition also alleged that defendant negligently overloaded the wagon in violation of another city ordinance introduced in evidence, so...