American Automobile Ins. Co. v. United Rys. Co.

• Decision Date: 06 November 1918
• Docket Number: No. 15171.,15171.
• Citation: 200 Mo. App. 317,206 S.W. 257
• Parties: AMERICAN AUTOMOBILE INS. CO. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

206 S.W. 257

200 Mo. App. 317

AMERICAN AUTOMOBILE INS. CO. v. UNITED RYS. CO. OF ST. LOUIS.

No. 15171.

St. Louis Court of Appeals. Missouri.

November 6, 1918.

Rehearing Denied November 19, 1918.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by the American Automobile Insurance Company against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and S. P. McChesney, all of St. Louis, for appellant.

Bryan, Williams & Cave and Alroy S. Phillips, all of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for damage to an automobile by reason of being struck by one of defendant's street cars in the city of St. Louis. The automobile belonged to one Bemis, and was being driven by his chauffeur at the time of the casualty. Plaintiff, an insurance company, had previously insured the automobile against loss or damage by collision, and having, under its policy, paid the owner $1,000 for the loss thus sustained by him, sues as the assignee of the cause of action. There was a verdict and judgment for plaintiff in the sum of $1,000, and defendant appeals.

The petition, after making certain formal allegations, pleads the so-called vigilant watch ordinance of the city of St. Louis, and also pleads other ordinances of said city, to wit, sections 1326, 1341, 1351, and 1356 of the Revised Code of St. Louis 1912; and for its cause of action plaintiff alleges that on October 21, 1913, the servant of one Bemis was driving an automobile belonging to the latter—

"in a northerly direction on Grand avenue, turning westwardly into Washington avenue, both public streets in the city of St. Louis; and that defendant's servants, in charge of and operating one of defendant's street cars in a southerly direction along said Grand avenue, so negligently operated said car that it collided with the said automobile, turned it over, and damaged it to the sum of sixteen hundred ($1,600) dollars."

The assignments of negligence on defendant's part, whereby, it is averred, the damage to the automobile was caused, are specifically set out as follows:

(1) "That the motorman or other person in charge of and operating said street car failed to keep a vigilant watch for the said automobile as it was on the track of said car or moving towards it, and on the first appearance of danger to such vehicle failed to stop the car in the shortest time and space possible, in violation of the ordinance aforesaid."

(2) "That the motorman or other person in charge of and operating said street car failed to ring his bell or give other warning of the approach of said car, and that it was going to move along the portion of the track crossed by the said automobile."

(3) "That the motorman or other person in charge of and operating said street car knew, or by the exercise of ordinary care could have known, that the said automobile was or was about to be in a position of danger, and failed to exercise such care, and failed to stop the street car in time to avoid the damage to said automobile."

(4) "That the motorman or other person in charge of and operating said street car saw, or by the exercise of ordinary care could have seen, that the said automobile was going in a westerly direction, and failed to exercise such care, and failed to give the said automobile the right of way over said street car, in violation of the ordinances aforesaid."

(5) "That the motorman or other person in charge of and operating said street car saw, or by the exercise of ordinary care could have seen, the direction given by hand by a member of the police at that place, indicating that the said street car and all other north and south bound vehicles should stop and permit the said automobile and all other east and west bound vehicles to pass, and failed to exercise such care, and failed to comply with the said direction, in violation of the ordinances aforesaid."

(6) "That after the said automobile had started to cross the track upon which the said street car was moving, or while it was crossing said track, the motorman or other person in charge of and operating said street car saw, or by the exercise of ordinary care could have seen, that the said automobile was in a position of danger in time to have avoided the collision, yet failed to exercise such care, and failed to stop the street car in time to avoid the damage to the automobile."

Then follow allegations as to the assignment of the cause of action, with a prayer for judgment in the sum of $1,000.

The answer is a general dental, coupled with a plea of contributory negligence.

The evidence discloses that or the afternoon of October 21, 1913, the chauffeur in charge of the automobile referred to in the petition drove the same westwardly on Washington avenue, a street extending east and west in the city of St. Louis, to Grand avenue, extending north and south, turned north on Grand avenue, and proceeded a short distance along the east side of that street, intending to then turn west into Washington avenue. Washington avenue, entering Grand avenue from the east at right angles, does not extend directly across the latter, but, after a short "jog" to the north, continues west. Consequently vehicles proceeding westwardly along Washington avenue, across Grand avenue, must turn to the right, upon entering the latter street, proceed a short distance north thereupon, and then turn west into Washington avenue. Upon Grand avenue defendant maintained "double tracks" upon which it operates its street cars. At the time here in question, and for a long time prior thereto, a traffic officer, a member of the police force of the city of St. Louis, was stationed on Grand avenue at or near the center of the western extension of Washington avenue.

According to the evidence for plaintiff, when the chauffeur had proceeded a short distance north on Grand avenue, after turning into that street, and had arrived near the point where he expected to turn to the left and proceed westwardly across defendant's tracks, in order to continue west on Washington avenue, he sounded the horn of his automobile, and gave to the traffic officer a signal indicating that he desired to proceed west; that the officer thereupon give the appropriate signal for the chauffeur to so proceed, by extending his arms in a semicircle; and that the chauffeur thereupon, hi obedience to such signal, turned his automobile to the left, and attempted to cross defendant's tracks, when the automobile was struck by a southbound car of defendant. The chauffeur testified that just prior to receiving this signal he saw the street car, then at least 100 feet north of this crossing; but that upon receiving the signal to cross he proceeded forward, looking ahead of him and managing the automobile, without paying further attention to the street car.

The traffic officer, Officer Galvin, testified that he gave plaintiff the signal aforesaid, and that when he did so the street car was just leaving Lucas avenue, a short block north of Washington avenue; and that while he was facing to the south, thus giving the signal for the automobile to pass over the tracks, the street car came upon the crossing and struck the automobile, the witness leaping aside in order to avoid the oncoming car.

One Phillips, a witness for plaintiff, who was on the platform of the street car, testified that he saw the traffic signal when the car was "a pretty good distance," perhaps 75 feet, from the crossing, but the car did not stop or slacken its speed.

The testimony for defendant tends to show that the street car stopped at the Lucas avenue crossing, a short block rorth of the scene of the collision; that the motorman "slowed down" the car, bringing it nearly to a standstill, whereupon the traffic officer signaled for it to proceed on its way, by extending his arms in a line north and south, but that when the motorman had put on the power and was proceeding to cross Washington avenue, and when it was too late to stop the car to avoid coming upon the crossing, the officer suddenly changed his signal, giving a signal for vehicles to pass from Grand avenue into Washington avenue, e., the signal which the chauffeur is said to have obeyed.

The traffic officer, however, stoutly denies that he changed his signal at all, and the other testimony for plaintiff tends to corroborate this.

Though section 1351 of the ordinances, supra, requiring drivers to "comply with any direction, by voice or hand, of any member of the police force," etc., was pleaded and introduced in evidence, as the cause was tried and submitted below a recovery by plaintiff is not dependent upon the validity of this section, which (though here in no way challenged below) has been recently held invalid by the Supreme Court in City of St. Louis v. Hugh Allen...