Bartner v. Darst
| Decision Date | 28 May 1926 |
| Docket Number | 25403 |
| Citation | 285 S.W. 449 |
| Parties | BARTNER v. DARST |
| Court | Missouri Supreme Court |
Bryan Williams & Cave and Hawes, Ely & Willson, all of St Louis, for appellant.
Abbott Fauntleroy, Cullen & Edwards and Brill & Weismantel all of St. Louis, for respondent.
Statement.
On May 19, 1922, the plaintiff filed in the circuit court of St. Louis, Mo., an action against Joseph M. Darst, Jr., and Joseph C. Darst to recover damages alleged to have been sustained by him in a collision of defendant's automobile with a single horse wagon driven by plaintiff about 2 o'clock in the morning of October 23, 1921, as he was traveling north over Delmar avenue in the city of St. Louis aforesaid, while defendants were traveling east on or near the middle of Delmar avenue in an automobile. At the conclusion of plaintiff's evidence, the demurrer of Joseph C. Darst to the testimony was sustained, and the demurrer of the remaining defendant overruled. The jury returned a verdict in favor of plaintiff and against the defendant Joseph M. Darst, Jr., for the sum of $ 12,500, which was reduced by direction of the court to $ 11,000, and judgment rendered accordingly. A motion for a new trial was overruled, and an appeal granted Joseph M. Darst, Jr., to this court.
The petition contains nineteen paragraphs, and each paragraph separately charges appellant with some violation of ordinance, law, or duty, which it is claimed he owed to plaintiff. Among other things, the defendant is charged with violating the speed ordinance of said city; with violating an ordinance which required him to travel east on the south side of the center of Delmar avenue; with violating the vigilant watch ordinance of said city; with violating the speed ordinance aforesaid by running his automobile, at the time and place of accident, at a dangerous and unreasonable rate of speed; with negligence in failing to use ordinary care under the circumstances aforesaid; with negligence in failing to slack the speed of his automobile in approaching the intersection of Euclid avenue with said Delmar avenue, and in failing to have said automobile under control while approaching said street crossing, etc.; with negligence in failing to drive the automobile on the right-hand side of Delmar avenue while traveling east; with negligence in failing to give notice or signal of the approach of said automobile, etc.; with negligence in driving said automobile at a rate of speed in excess of 25 miles for a distance of one-half mile; with negligence in failing to have said machine provided with proper lights, and with negligence under the humanitarian rule, etc. It is then averred in the petition, that, as a direct result of appellant's negligence, as above set out, plaintiff's wagon was struck and thrown upon the roadway of Delmar avenue, and plaintiff was thrown upon said roadway and sustained the injuries complained of in petition, which are specifically described therein. He claimed as damages the sum of $ 35,000.
Appellant filed an answer, containing a general denial, with a plea of contributory negligence, etc.
Plaintiff's Evidence.
Plaintiff's evidence tends to show that Delmar avenue runs practically east and west in the city of St. Louis, Mo.; that Euclid avenue in said city runs north and south and intersects Delmar avenue about 150 feet west of the place where plaintiff was injured on Delmar avenue. There are two United Railway car tracks in the center of Delmar avenue. The one on the north is called the westbound track, used by street cars traveling west. The one on the south of the center of Delmar avenue is the east-bound track, used by the street cars traveling east.
The plaintiff testified that he was 25 years old, and lived at Kirkwood, Mo.; that on October 23, 1921, he was in the service of the Highland Dairy Farm, as a milk wagon driver; that he kept his horse and wagon at Delmar and Union; that he loaded his wagon with milk at 4818 on the south side of Delmar, about 250 feet east of Euclid avenue; that about 2 o'clock in the morning of October 23, 1921, he started north to cross Delmar, while driving his wagon with single horse attached; that there was a lighted red lantern on the rear of his wagon, which was visible from the east and west; that there was a lighted white lantern on the front and left-hand side of the wagon near the top; that he had a lantern sitting in front of him by his left leg; that the window in front of his wagon was open; that his horse walked about 21/2 miles per hour; that he was hit by the automobile about 5 minutes before 2 in the morning; that he drove out of the driveway toward the north, and, when his horse's hind legs were about on the curbing at south side of Delmar, he looked east, then west; that he saw no automobile from the east and saw no machine between him and Euclid avenue on the west; that, when he saw the road was clear, he drove straight north across the street until he got to about the center of Delmar, or near the center, and his horse turned west; that he looked east before turning west and saw no machine; that, while his wheels were about the center of the west-bound track he looked west; that he saw no automobile approaching from either direction and continued to move, when he looked west and saw defendant's car about 50 or 60 feet away coming towards him; that he urged his horse forward the best he could, and his wagon was struck at the rear end by the machine coming from the west which was driven by appellant; that he heard no horn or signal.
Plaintiff, after qualifying as competent to express an opinion, testified that appellant's automobile, as it approached him, was traveling 35 to 40 miles per hour. He testified that as he drove into Delmar there were no other automobiles passing east or west; that the sidewalk on Delmar was 15 feet wide; that it is 18 feet from the south curb to the south rail of the east-bound track on Delmar; that the width of the street car tracks is 4 feet and 8 inches; that the space between the tracks is about 5 feet. The plaintiff here described his injuries, which will be considered later.
On cross-examination, plaintiff testified that, if he had looked for a car coming three blocks away with lights on, he could have seen it.
Joseph R. Colan, a student at Washington University, testified, in substance, that he was standing on the sidewalk and saw the accident; that, when plaintiff's wagon was hit, it was in the center of the west-bound car track; that he saw the automobile strike the wagon; that the north edge of the automobile was closest to the south edge of the west-bound car tracks; that he saw a light underneath the wagon, but did not notice any other lights; that the horse and wagon came straight out and then turned to go west; that it nearly made the turn to go west, and was at an angle of about 45 degrees when the wagon was hit; that the street lights were lit; that he saw the machine before it struck the wagon. The witness, after sufficiently qualifying as an expert, was permitted to, and did, testify that the automobile was going 30 miles per hour; that he had no remembrance of any gong being sounded.
Lawrence Dedert testified for plaintiff, in substance, that he witnessed the accident; that plaintiff, as he got in the driveway, looked both directions and saw no automobile; that he then went on to the center of the street, and, as he (witness) looked up, he saw the automobile coming; that the wagon went on the east-bound car track and then turned partially to go west; that the machine was up at Euclid avenue when witness first saw it; the machine was in the center of both car tracks; that he noticed lights on the wagon; that he heard no horn or signal; that the thing which attracted his attention to the automobile was the rate of speed at which it was coming.
Joseph Finley testified for plaintiff, in substance that at the time of the accident he was standing on the southwest corner of Euclid avenue and Delmar; that he heard a machine coming, looked up and saw it pass Euclid; that he saw a milk wagon near the north side of Delmar in front of Samelson's, and the machine hit the left hind wheel of the wagon and knocked the latter over into the gutter; that the automobile was between the east and west bound car tracks; that the automobile was going approximately 35 or 40 miles an hour; that it continued in the center of the street.
Appellant's Deposition.
A part of appellant's deposition was read in evidence by plaintiff in which he testified, substantially, that the brakes on the Nash automobile he was driving were in good condition; that Delmar east from Euclid was dry; that he stopped within 20 to 25 feet; that he sounded no horn or signal after leaving Euclid avenue.
Niel Nissen, an automobile mechanic, a witness for plaintiff, who owned and had been using a Nash car, said it could be stopped, with the brakes in good condition, on such a street as Delmar, going 10 miles an hour, in 10 feet; going 15 miles an hour, in 18 feet; going 20 miles an hour, in 25 feet; going 25 miles an hour, in 35 feet; going 28 miles an hour, in 40 feet.
Plaintiff offered in evidence speed limit ordinance known as section 1301. He also offered in evidence section 1266, requiring vehicles to keep as near the right-hand curb as possible.
This was substantially all the evidence offered by plaintiff in chief.
Defendant's Evidence.
Appellant testified, in substance, that he lived at 4531 West Pine that he is 33 years old, and about 10 minutes of 2 o'clock on the morning of October 23, 1921, he was driving a Nash coupe eastwardly on Delmar avenue; that it was equipped with two headlights, a dash light on the dashboard on the inside of the car, and a...
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