Adams v. St. Louis Public Service Co.

• Decision Date: 05 November 1930
• Docket Number: No. 21224.,21224.
• Parties: ADAMS v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

32 S.W.2d 100

ADAMS v. ST. LOUIS PUBLIC SERVICE CO.

No. 21224.

St. Louis Court of Appeals. Missouri.

November 5, 1930.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Preslin Adams, a minor, by Felice Adams, his next friend, against the St. Louis Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

T. E. Francis, O. P. Owen, and B. G. Carpenter, all of St. Louis, for appellant.

Fred. Berthold, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment rendered in favor of the plaintiff for $1,500 for injuries received in a collision of a street car of the defendant with plaintiff's automobile.

The petition contained 5 assignments of negligence: (1) Violation of the vigilant watch ordinance of the city of St. Louis, (2) failure to operate the street car in a careful and prudent manner, and at a rate of speed so as not to endanger the life or limb of plaintiff, (3) failure to sound a gong or bell, (4) failure to stop or diminish the speed of the street car, (5) violation of the last chance or humanitarian doctrine, and as to the last assignment of negligence the petition alleged that "defendant, its motorman and agent saw, or by the exercise of ordinary care could have seen plaintiff sitting in said automobile and saw that plaintiff was in a position of imminent peril and danger of being struck and injured by defendant's street car and that plaintiff was unconscious of and oblivious of any peril or danger to himself in time thereafter, by the exercise of ordinary care and with the means and appliances at hand on said street car, to have stopped said street car, or diminished the speed of same, or to have sounded a signal warning of the approach of same and could thereby have avoided colliding with the automobile in which plaintiff was sitting and could thereby have avoided injuring plaintiff," etc.

The answer was in the nature of a general denial with a plea of contributory negligence, and the reply was a general denial.

The testimony disclosed that the plaintiff was driving a Ford roadster; he drove to Grand and North Market street in the city of St. Louis and then turned east on North Market street to Garrison avenue; that there was a street car on the west side of Grand avenue on North Market street headed east, which was the car that later collided with his automobile; that on North Market street at Garrison avenue there were two street car tracks, one running east and the other south; that the east-bound street car tracks turned south in Garrison avenue; that when he reached Garrison avenue his machine was traveling about 15 miles an hour and he stopped at Garrison to let the north-bound traffic pass on that street; that there were two automobiles proceeding north, one of them was just crossing the intersection and the other was about 100 feet behind the first; that the rear wheels of his machine when he stopped were between the east and south bound street car tracks; that when he made the sudden stop it killed his motor and after his motor turned over and just as he was releasing his brake to start up his car an east-bound Natural Bridge car struck the left rear end of his machine and caused his chest to hit the steering wheel and threw him to the floor of his automobile causing the injuries complained of. That after the collision the Ford roadster was facing east on North Market street on the south side and on the east side of Garrison avenue, while the street car, when it came to a stop, was on Garrison avenue, and the rear end was about 20 feet south of North Market street; that the evening was mild and the streets and rails were dry, and at that point the street was about level.

On cross-examination he testified that he had a mirror in his car which would have enabled him to see objects in the rear, but he did not look into the mirror; that the last time he had seen the street car it was on the west side of Grand avenue.

Alonzo Williams, a witness for plaintiff, testified that he was about 150 feet west of Garrison avenue on North Market street, when the automobile passed him going east on the south side of North Market street; that when he reached a point 100 feet from Garrison avenue the street car passed him, at which time the automobile was stopped at Garrison avenue; that when the street car passed him it was going between 15 and 20 miles an hour, and that it did not diminish its speed before it struck the automobile, and that from the time the street car passed him until the collision occurred the motorman did not sound a gong or bell. Traffic was passing in Garrison avenue going north.

Another witness for plaintiff, Ralph Derbes, testified he was an ex-motorman for the defendant, was familiar with the type of car used, and that traveling at the rate of 15 miles an hour such car could be stopped within 35 feet with safety to the motorman, the conductor, and the passengers on board; that at the rate of 20 miles an hour such car could be stopped within 50 feet.

Defendant introduced witnesses who testified that the street car had slowed down to 5 or 6 miles an hour, that the gong was sounded when the street car was 35 feet from the point of collision, and that the street car stopped...