Anth v. Wells

• Decision Date: 22 June 1926
• Docket Number: No. 19409.,19409.
• Citation: 285 S.W. 768
• Parties: ANTH v. WELLS.
• Court: Missouri Court of Appeals

285 S.W. 768

ANTH v. WELLS.

No. 19409.

St. Louis Court of Appeals. Missouri.

June 22, 1926.

Rehearing Denied July 8, 1926.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published."

Action by Edna Bender Anth against Rolla Wells, receiver of `United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and John F. Evans, all of St. Louis (A. E. L. Gardner, of Clayton, of counsel), for appellant.

Jos. A. Falzone and George F. Heege, both of Clayton, for respondent.

SUTTON, C.

This is an action for personal injuries received by plaintiff in a collision between an automobile in which she was riding and the defendant's street car, which occurred at the intersection of Monroe and Clay avenues, in the city of Kirkwood.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $3,500, and judgment was given accordingly. Defendant appeals.

Defendant maintains double tracks on Clay avenue, which runs north and south and intersects Monroe avenue at right angles. South-bound cars are operated on the west track and north-bound cars on the east track. The automobile in which plaintiff was riding at the time of the collision was going east on Monroe avenue. William G. Anth was the owner of the automobile, and was driving it at the time. Plaintiff was riding in the automobile as the guest of the driver. It is conceded that her relation to the driver was not such as to impute to her his negligence. The street car which collided with the automobile was going north on the east track, and struck the automobile about midway between the front and rear, and carried it north along the track a distance of 100 to 132 feet before the car was stopped. The accident occurred on the 17th day of December, 1923, in the forenoon. It was a dry day. The automobile was a roadster, weighing about 2,800 pounds. It was wrecked by the collision, and the plaintiff was seriously injured.

Plaintiff testified:

"Mr. Anth was driving the automobile. We were going east on the south side of Monroe avenue. As we approached Clay and got near the curb, we were almost to a stop. I drove a car myself, and I looked north and south and saw the car coming from the south. It was between 200 and 300 feet away. It was all right, the distance looked so far; and I said, `All right;' and Mr. Anth shifted his gears and went slowly, about 6 or 8 miles an hour. I didn't look up any more until we were on the street car track, the track the car was coming on, and happened to look up, and I saw the street car coming. I said, `We are going to get hit.' The street car then appeared to be going about 35 miles an hour. I could feel the jerk of the automobile, he was giving it the gas to get across, and just as we were on the track the street car struck the automobile right in the middle. I was sitting in the back seat, which is near the middle of the automobile. When I looked up the second time and saw the street car coming, it was about 18 feet from the automobile, something like that. I saw the motorman. He was not looking ahead. He was looking downward, and the street car was going awful fast. When I looked up the second time and saw the street car about 18 feet away, the front wheels of the automobile were on the west rail of the track on which the street car was going north. When the street car struck the automobile, it was dragged almost half way down the block. When the automobile approached the crossing and stopped at the curb, and I looked south and saw the street car coming, the automobile was about 18 or 20 feet from the west rail of the track on which the street car was coming. At that time the street car did not seem to be going very fast. It appeared to be going 10 or 15 miles per hour. Between the time that I first saw the car a distance back and when I saw it the second time, about 18 feet away, there was no whistle or bell sounded on the street car."

William G. Anth, produced by plaintiff, testified:

"I was coming up Monroe avenue, going east, and, when I got up about to the west curb of Clay avenue, I stopped my car almost, and looked up and saw a street car coming north on Clay avenue about 200 or 250 feet from Monroe avenue, the way it looked to me. It looked to me that the street car was then going 10 to 12 miles an hour. When I saw the street car and stopped at the curb line, the front end of my automobile was about 18 feet from the west rail of the north-bound track, something like that. After I stopped and saw the street car coming, I changed gears and started across real slow. I thought I had plenty of time to go across. I was going about 6 or 7 miles an hour, and just about the time my automobile wheels hit the north-bound track I saw this street car coming, and it must have been traveling at 35 or 40 miles an hour, and I couldn't stop because I was right on the track. I tried to get across, and stepped on the gas and started across, and the street car struck me. When my wheels were about on the track, I looked up and saw the street car coming about 12 or 15 feet from me. My hearing is good, and I did not hear any bell or whistle at any time. When the street car struck me, it took me down the track 132 feet. The plaintiff was riding with me in the automobile. The automobile was equipped with a horn, and I blew the horn as I approached Clay avenue. When I saw the street car about 200 or 250 feet away, I was about 18 feet from the west rail of the north-bound track. I next saw the street car when my front wheels were right on the track and the street car was about 12 or 15 feet away, and it looked to me like it was traveling 35 or 40 miles an hour. I did not see the street car between the first time I saw it and the time I was on the track. I was going about 6 or 7 miles an hour when I reached the track."

A number of other witnesses were produced by Plaintiff. They testified that the automobile in which plaintiff was riding stopped at the west curb of Clay...