Allen v. Kessler
| Decision Date | 03 August 1933 |
| Docket Number | 31106 |
| Parties | ALLEN v. KESSLER |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled August 24, 1933.
Motion to Transfer to Banc Over October 29, 1933.
McLaran & Garesche and E. H. Wayman, all of St. Louis, for appellant.
Mark D Eagleton, Frank L. Ramacciotti, and Frank P. Aschemeyer, all of St. Louis, for respondent.
STURGIS, Commissioner.
Plaintiff obtained a judgment for $ 10,000 against defendant, doing business as the Kessler Grocery Company, for personal injuries received by plaintiff as the result of defendant's motor truck colliding with him while he was crossing Broadway, one of the principal north and south streets of St. Louis. From that judgment, the defendant has appealed.
The evidence shows that plaintiff had walked north on the west side of Broadway to a point some 60 feet south of its intersection with Choteau avenue, an east and west street and at that point left the sidewalk and went east on Broadway, intending to cross to the place on the east side of Broadway termed the safety zone, a place for passengers to take or be discharged from the north-bound street cars, where he intended to board a street car going north to his work. There were two north and south street car lines on Broadway and the safety zone for boarding or leaving north-bound cars was immediately south of Choteau avenue along the east track and between such track and the east curb line extending about 60 feet south of Choteau avenue. That is why plaintiff attempted to cross Broadway 60 feet south of and before reaching Choteau avenue. Defendant's truck, driven by his colored driver, was returning from a business trip and going south on the west side of Broadway as it approached and crossed Choteau avenue. The collision took place and plaintiff was injured when he reached and was crossing the west or south-bound street car track on Broadway 60 feet south of Choteau avenue.
There is no question of plaintiff's coming in collision with defendant's truck at the time and place mentioned or that he suffered very severe injuries, including a fractured skull. It is not claimed that the verdict is excessive if plaintiff is entitled to recover.
The petition charges negligence on the part of defendant's driver in several respects, such as driving at an excessive rate of speed, failure to give any signal or warning, failure to keep a lookout and observe plaintiff, who was in plain view, etc., ending with the charge, on which alone the case went to the jury, that defendant's driver violated the humanitarian rule in that he saw, or could with due care have seen, plaintiff in peril of being struck by the truck in time to have avoided striking him by using the means and appliances at hand. By his answer, the defendant, in addition to a general denial, made the defense that plaintiff, in attempting to cross Broadway, was himself negligent in not looking and listening for approaching automobiles and that he 'suddenly ran into the right side of defendant's automobile so close thereto as to render a collision unavoidable on defendant's part.' Although it is shown that the windshield of defendant's truck was badly broken by plaintiff's head striking it, this charge was made purely by way of defense and no counterclaim for damages is made by defendant.
On the trial the defendant asked a demurrer to the evidence at the close of plaintiff's evidence and again at the close of all the evidence, which the court overruled. The court then instructed the jury to disregard the several grounds of negligence charged other than the violation of the humanitarian doctrine and submitted the case for plaintiff solely on the ground that defendant was negligent in that his driver saw, or by using reasonable care could have seen. plaintiff in a position of imminent peril of being struck by defendant's truck at a time and place when such truck driver could, with reasonable care and by using the means and appliances at hand, have stopped said automobile truck or slackened the speed thereof, or have given a warning signal of its approach, and could and would thereby have averted striking and injuring plaintiff. The court gave an instruction for plaintiff to the jury on this theory and no objection is made to the form of this instruction. The court gave part of the instructions asked for by defendant and he makes no complaint of those refused. Error is assigned on the giving of plaintiff's instruction submitting the case on the humanitarian doctrine, but the objection is not to the instruction itself but that there is no evidence to support it. As this was the only instruction given submitting the case to the jury, this assignment of error amounts to the same as the one that the court erred in refusing the demurrer to the evidence. Such is the only real question in the case.
The plaintiff testified that on this occasion he walked north along the west side of Broadway till he came to a point about 60 feet south of the intersection with Choteau avenue, where he turned east and crossed Broadway so as to reach the south end of the safety zone east of the east street car track in order to take a north-bound street car. When he stepped two or three steps or about 5 feet beyond the west curb line of Broadway, he looked north and saw this truck coming south. It was then north of the intersection with Choteau avenue and about 130 feet from plaintiff and was traveling south between the west curb of Broadway and the west street car track at about 15 miles per hour. This, as plaintiff testified, he thought gave him abundant time to cross the street, at least beyond the line of travel of this truck, and so plaintiff says he gave no further attention to the approaching truck and the next thing he...
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