Andersen v. Wells

• Citation: 261 S.W. 952
• Decision Date: 06 May 1924
• Docket Number: No. 18555.,18555.
• Parties: ANDERSEN v. WELLS.
• Court: Court of Appeal of Missouri (US)

261 S.W. 952

ANDERSEN v. WELLS.

No. 18555.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Rehearing Denied May 22, 1924.

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

"Not to be officially published."

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

T. E. Francis, Lrnest A. Green, and Alva W. Hurt, all of St. Louis, for appellant. Brackmann, Hausner & Versen, of St. Louis, for respondent.

DAUBS, J.

This is an action to recover damages on account of alleged personal injuries to plaintiff and for damages to plaintiff's automobile, caused by a collision between the automobile and one of defendant's street cars. Plaintiff recovered a verdict and judgment for $800, from which the defendant appeals.

The petition counts upon three assignments of negligence: First, a violation of the 15-mile speed ordinance of the city of St. Louis; secondly, a violation of the vigilant watch ordinance of said city ; and, thirdly, a failure to avoid the accident under the humanitarian rule.

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

Since appellant's main reliance is upon its demurrer to the evidence, it being contended that plaintiff was shown to have been guilty of contributory negligence as a matter of law, we set out such of the record evidence to dispose of that point.

Plaintiff, the owner of a seven-passenger touring car then worth $700, while driving same on December 23, 1921, collided with two of defendant's street cars. He was what is known as a "service car driver," hauling passengers for hire over the streets of the city of St. Louis. On this day he was making a trip from the downtown district to the west end of St. Louis. It had been raining on that day, but at the time of the accident, to wit, about 6 o'clock in the afternoon, it had ceased raining. The curtains on plaintiff's car were up in the back, but there were no curtains in the front of the car. Plaintiff had five passengers in his car, but no one was in the front seat with him. Delmar avenue runs east and west, and Lake avenue intersects Delmar avenue from the south, but does not run through. Plaintiff was driving from the south on Lake avenue, and as he reached Delmar avenue he came "practically to a stop," his front wheels then being almost even with the south curb of Delmar avenue. Two street car tracks are maintained by defendant in Delmar avenue, one being used for east-bound and the other for west-bound cars. Plaintiff testified that it was his intention to cross at the intersection of these streets and turn west after he had crossed the car tracks. From this point he looked both ways and saw a street car approaching from the east and one from the west of the intersection. He says the west-bound car was about a block away, and also that the east-bound car was about a block away. These distances have been given as 250 to 300 feet from Lake avenue. There is a curb out in the street on each side of the rails of the street car tracks, leaving a space on either side for the use of vehicles. Plaintiff testified that when he looked to see the approaching street cars east and west same were 300 feet away from him. He then had his machine even with the curb on Delmar avenue, and says he did not think it was one foot away ; that is to say, the front end of his machine was within a foot of the curb line. He was asked the following question: "Did you continue watching the car?" He answered: "Yes, sir." He was also asked whether he watched it until the collision occurred, to which he answered: "Yes, sir." He said he was driving at the rate of about four miles an hour, and that it was 30 feet from where he had his automobile nearly stopped to the tracks. He then proceeded straight over the tracks, and when the rear wheels of the machine were resting in the center of the east-bound track he heard a gong from the street car, and just as he heard it he was struck by the car. His front wheels had cleared the entire eastbound track at that time, and he was intending to make a turn west on Delmar avenue. He said the street car knocked him 10 or 15 feet into the west-bound track, facing his car west, and putting the rear end of his car toward the east, standing right in the tracks. He was immediately thereafter struck by the west-bound car, and .his machine thrown to the southwest corner of Lake and Delmar avenues. Plaintiff said be saw the eastbound car approaching, but that he did not know its speed; that he did not realize it was coming fast, and that he judged it was running at an ordinary rate of speed, by which he said he meant from 10 to 15 miles an hour. The passengers who were in the rear seats of the service car testified at the trial. It seems they did not realize the danger until the collision actually occurred. There was no obstruction between the service car from the time it reached the curb and the street car, and it is very clear that the motorman could have seen the automobile attempting to cross the tracks had he looked. After striking plaintiff's machine, the street car Went about 50 feet before It was stopped.

There is abundant proof that the street car was running as high as 25 miles an hour. A witness testified that she was on the sidewalk near...