Ross v. Wells

• Decision Date: 22 June 1923
• Docket Number: No. 17934.,17934.
• Citation: 253 S.W. 28,212 Mo. App. 62
• Parties: ROSS v. WELLS.
• Court: Missouri Court of Appeals

253 S.W. 28

212 Mo. App. 62

ROSS v. WELLS.

No. 17934.

St. Louis Court of Appeals. Missouri.

June 22, 1923.

Appeal from St. Louis Circuit Court; son A. Taylor, Judge.

Action by Mary Ross against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed. "

Charles W. Bates, T. B. Francis, and Geo, T. Priest, all of St. Louis, for appellant.

McMahon & Berthold and Oliver Blackington, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries sustained by plaintiff by reason of a collision between an automobile in which she was riding and a street car operated by the defendant. There are several assignments of negligence in the petition; one of them charging that plaintiff's injuries were caused by the negligence of defendant in operating its street car at a rate of speed in excess of 15 miles per hour, in violation of a certain ordinance of the city of St. Louis. The answer is a general denial coupled with a plea of contributory negligence on the part of plaintiff.

The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $750, and the defendant appeals.

The casualty occurred on August 12, 1920, at about 5 o'clock, p. m., at the intersection of Kingshighway boulevard and St. Louis avenue, public streets in the city of St. Louis. Kingshighway extends north and south and is intersected by St. Louis avenue, extending east and west. Plaintiff was riding in her husband's automobile, driven by the husband, who sat at the wheel in the front seat thereof. Plaintiff and her daughter sat in the rear seat, plaintiff sitting on the right side of the automobile. Kingshighway is a wide boulevard, the two traveled portions of the street being separated by a grass plot or parkway in the center thereof. The exact width of the entire street is not shown, but there is testimony that it is about ninety feet wide. On St. Louis avenue, crossing Kingshighway, the defendant maintained double street car tracks; westbound ears being operated on the north track and east-bound cars on the south track. The automobile in which plaintiff was riding, while proceeding south on the west side of Kingshighway, crossing, or proceeding to cross, defendant's tracks, came into collision with a west-bound car of defendant which was proceeding west on the north track at this crossing, whereby plaintiff sustained the injuries for which she sues.

Plaintiff testified that in approaching St. Louis avenue the speed of the automobile was not in excess of 10 or 11 miles per hour and was slackened to 2 or 3 miles per hour at or about the north line of St. Louis avenue. Her testimony in this connection is as follows:

"Q. Now, tell this jury then how fast your husband's car was traveling as it approached St. Louis avenue? A. Well, I know how fast the car runs; I have been riding in it; but I wasn't in front of the speedometer to see it, but I know it wasn't going more than 10 or 11 miles an hour. And when we got to the corner he slowed up to about two or three miles; and he always slows up at a corner anyway. Q. didn't catch the speed of the car at St. Louis avenue. A. It couldn't be more than 2 or 3 miles."

Plaintiff further testified that she observed a street car standing on the west side of Kingshighway, headed east, which car remained stationary until after the collision; but did not look to the east at that time. She was asked, on direct examination: "Did you look eastwardly on St. Louis avenue? And she answered: "No, sir, I didn't think to look that way." She said that her husband continued southwardly, crossing the street car tracks, and that he was crossing the north or west-bound track when the automobile was struck by the west-bound car; that the front part of the automobile had just crossed over the north track when struck. She said:

"The front had just crossed over and I happened to turn around and saw the car and said, `Oh, My!' * * * When I saw the car I think it was about fifteen feet away. * * * It was crossing the street."

She testified that the street car struck the left front side of the automobile, turning it completely around and throwing it west upon the sidewalk. Her testimony is that the street car was running at 35 or 40 miles an hour, and that the motorman sounded no warning signal; that a trailer, or second car, was attached to the car which struck the automobile, and after the collision the cars stopped with the rear end of the trailer about 50 feet west of the point of the collision. Further testimony of plaintiff, on direct examination, is as follows:

"Q. Did you have anything to do with the operating of your husband's automobile? A. No, sir. Q. You were sitting back there in the back seat? A. Yes, sir. Q. Were you paying any particular attention to' the manner in which your husband was driving this automobile? A. I always do. Q. And did you undertake to tell your husband how he should operate or drive this automobile? A. He is very careful; I don't have to. Q. No; on this particular occasion; at this time did you undertake to warn your husband of any danger of street cars? A. No, sir. Q. You were sitting back there with your daughter? A. Yes. sir. Q. And the first time that you saw the street car was when it was 15 feet away from you; that is, from the left-hand side of your car? A. Yes, sir." "

On cross-examination plaintiff reiterated that she did not see the west-bound car until it was about 15 feet from her, at which time the automobile was "just crossing the north rail of the west-bound track." When asked if she called her husband's "attention to anything about the car," she said: "Nor sir, I said I didn't have to because he is very careful in driving."

Plaintiff's daughter, who was with plaintiff on the rear seat of the automobile, testified that she saw the west-bound street car when it was 300 or 400 feet east of the point of the collision, at which time the automobile was about 25 feet from the car tracks, traveling at the rate of about 10 miles per hour; but that before the crossing was reached the speed of the automobile was reduced to 2 or 3 miles per hour, so that it was "barely moving." She said that the front wheels of the automobile were "just about midway between the two tracks" when the collision occurred. She further testified that she did not watch the west-bound street car, after she saw it 300 or 400 feet away, but when the automobile was about a foot from the west-bound track she glanced to the east and saw the car at the northeast corner of Kingshighway and St. Louis avenue, at which time it was going, in her opinion, 35 or 40 miles an hour. And she also said that the "front part" of the automobile was hit by the street car, causing the automobile to be turned completely around and thrown upon the sidewalk.

Two young girls, witnesses for plaintiff, who were sitting upon some steps on St. Louis avenue "about 10 houses" east of Kingshighway, testified that they were watching for automobiles, and that they saw the automobile in which plaintiff was riding as it passed the north building line of St. Louis avenue, and also observed the westbound street car; their attention being attracted thereto by reason of its rapid speed, which one of them placed at 30 or 35 miles per hour. Their testimony tends to corroborate that of plaintiff and her daughter to the effect that the automobile was proceeding quite slowly as it crossed St. Louis avenue. One of them said that the automobile was "coming about moderately," and when it "neared" St. Louis avenue it "slowed up," and that it was "almost stopped" at the time of the collision.

For the purposes of this appeal it is unnecessary to refer to the testimony for defendant further than to say that it tends to show that the street car was running at about 12 or 15 miles an hour, while the automobile was proceeding at a high rate of speed—25 or 30 miles per hour, according to some of the testimony; and that the automobile ran into the side of the street car.

Plaintiff submitted her case to the jury by a single instruction on the question of liability, which predicated a recovery upon the assignment of negligence in the petition charging a violation of the speed ordinance of the city of St. Louis.

Defendant, appellant here, makes but one assignment of error, and that is that the trial court erred in refusing to peremptorily direct a verdict for the defendant on the ground that plaintiff was shown to be guilty of contributory negligence as a matter of law, precluding a recovery.

At the outset, it may be well to note that it is beyond controversy that the negligence of plaintiff's husband, as driver of the automobile, if any, is not imputed to plaintiff. See: Sluder v. Transit Co., 189 Mo. 107, 88 S. W. 648, 5 L. R. A. (N. S.) 186; Stotler v. Railroad, 200 M. 107, 98 S. W. 509; Neff v. City of Cameron, 213 Mo. 350, loc. cit. 359, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606; Moon v. St. Louis Transit Co., 237 Mo. 425, 141 S. W. 870, Ann. Cas. 1913A, 183; Mahany v. Kansas City Rys. Co., 286 Mo. 601, 228 S. W. 821; Munger v. City of Sedalia, 66 Mo. App. 629, loc. cit. 632; Fechley v. Springfield Traction Co., 119 Mo. App. 358, 96 S. W. 421; Burton v. Pryor (Mo. App.) 198 S. W. 1117; Leapard v. Kansas City Rys. Co. (Mo. App.) 214 S. W, 268. It is not contended by defendant, however, that plaintiff is precluded from recovering by reason of any negligence of her husband, imputed to her, but that, under the evidence touching plaintiff's own conduct in the premises she must be held guilty of contributory negligence, as a matter of law, in failing to seasonably look toward the east, as well as toward the west, as the automobile approached the crossing; this upon the theory that had she timely looked east she would have observed the oncoming west-bound car in time to have warned her husband of the...