Banker v. Wells

• Decision Date: 07 July 1925
• Docket Number: No. 19047.,19047.
• Citation: 274 S.W. 939
• Parties: BANKER v. WELLS.
• Court: Missouri Court of Appeals

274 S.W. 939

BANKER v. WELLS.

No. 19047.

St. Louis Court of Appeals. Missouri.

July 7, 1925.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Catherine Banker against Rolla Wells, as receiver of the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Frank C. O'Malley, of St. Louis, for appellant.

Charles W. Bates, T. E. Francis, and A. E. Park, all of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff in a collision between an automobile in which she was riding and the defendant's street car, occurring at the intersection of Eighteenth street and Cass avenue in the city of St. Louis. The cause was tried to a jury, there was a verdict and judgment for defendant, and plaintiff appeals.

The automobile in which plaintiff was riding at the time of her injury was a Ford. coupé, and it was being driven by the plaintiff's daughter, who was the owner thereof. There is nothing in the evidence to show that the relation between the driver of the automobile and the plaintiff was such as to impute the driver's negligence to the plaintiff. The evidence concedes that the plaintiff was al mere guest or passenger of the driver, and no contention is made here to the contrary. There was evidence tending to show that the plaintiff's daughter was an experienced driver. There was also some suggestion in the evidence to the contrary. There was no evidence to show that the plaintiff was experienced in any way in the driving or operation of automobiles.

Eighteenth street runs north and south, and Cass avenue runs east and west. Defendant maintains a double-track street car line on Cass avenue. The west-bound cars are operated on the north track, and the eastbound cars on the south track.

The accident in which plaintiff was injured occurred in the afternoon of July 30, 1922.

The evidence for the plaintiff tends to show that, as the automobile in which she was riding approached the intersection of Eighteenth street and Cass avenue, both the driver and the plaintiff observed defendant's street car approaching the intersection from the west; that the plaintiff warned the driver to look out for the street car; that the driver stopped the automobile on the south side of Cass avenue, near the crosswalk, about 2 feet from the curb, to wait for the street car to pass over the intersection, but that the street car instead of passing at once over the intersection, stopped on the west side of the intersection to receive or discharge passengers; that the driver of the automobile, seeing that the street car had stopped to receive or discharge passengers, proceeded to drive the automobile across the intersection; that, when the automobile arrived at the south track, the street car collided with the automobile, and thereby plaintiff sustained the injuries for which she sues; that as the automobile was proceeding across the intersection, the motorman suddenly started the street car forward from the west side of the intersection, and ran it to the point of collision with the automobile without sounding the gong or giving any warning signal whatever; that the front end of the car struck the left front fender of the automobile and shoved the automobile against the curb at the corner; that as a result of the collision the left fender was smashed, the steering rods were bent, the windshield was broken, and the left spindle of the rear axle was sprung.

Eighteenth street at the north side of the Intersection with Cass avenue joggs slightly to the east, so that an automobile in crossing the intersection from the south would ordinarily proceed in a slightly northeast direction.

For the defendant, the motorman testified that he stopped the street car west of the intersection to discharge passengers; that one or two passengers got off; that just as he started the car forward after discharging the passengers, he hit the gong and looked south, and saw the automobile coming north on Eighteenth street about 100 feet from the street car; that he was just starting the street car when he saw the automobile coming; that it seemed like the nearer it came the faster it came; that he threw the power off and stopped the street car to let the automobile pass around in front of the street ear; that the street car was about half way across Eighteenth street when it stopped; that he watched the automobile all the way as it ran about 100 feet down towards the tracks; that the car was running very slowly after he first started it; that the rails were dry; that when he first saw the automobile the street car was going perhaps 1 mile per hour, just creeping along; that at the rate of speed he was going the car could have been stopped within a foot or two, and that he stopped it within a foot or two; that when he first saw the automobile it seemed like it was coming slow, and then it seemed like it picked up speed, and that he then realized it was not going to stop, and stopped the car to give the automobile a chance to pass around in front of the street car; that the automobile was about 20 or 25 feet away from the street car when he realized that the automobile was picking up speed; that the street car went about...