Bendick v. Wells

• Decision Date: 06 July 1923
• Docket Number: No. 17926.,17926.
• Citation: 253 S.W. 394
• Parties: BENDICK v. WELLS
• Court: Missouri Court of Appeals

253 S.W. 394

BENDICK v. WELLS

No. 17926.

St. Louis Court of Appeals. Missouri.

July 6, 1923.

Rehearing Denied July 14, 1923.

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

"Not to be officially published."

Action by Leona Bendick against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant.

E. E. Rudolph and Milton C. Lauenstein, both of St. Louis, for respondent.

BRUERE, C.

This is an action for personal injuries received by the plaintiff in a collision between an automobile, driven by plaintiff, and defendant's street car. At a trial there was a verdict and judgment for plaintiff in the sum of $500, from which judgment defendant has appealed.

The petition counts upon four grounds of negligence: (1) Failing to keep a vigilant watch ahead for vehicles on or moving towards the track on which the car was running, in violation of an ordinance of the city of St. Louis commonly called the vigilant watch ordinance; (2) driving the car at a negligent rate of speed in excess of 15 miles per hour in violation of an ordinance of said city; (3) failing to sound the gong or give warning of the car's approach; (4) a violation of the humanitarian or last chance doctrine.

The answer is a general denial, coupled with the plea that whatever injuries plaintiff may have sustained, if any, were caused by her own carelessness and negligence in driving toward and onto a street railway track without looking or listening for the approaching street cars thereon, and in driving immediately in front of and in close and dangerous proximity to the moving street car.

The cause was submitted to the jury on the four grounds of negligence alleged in the petition.

The errors here go to the giving of instructions Nos. 1, 2, 3, and 7 for the plaintiff.

By instructions Nos. 1, 2, and 3, the lower court permitted a recovery for negligence predicated upon said grounds of negligence 1, 2, and 3, respectively.

The only question we are called upon to settle, in passing upon the action of the trial court in giving instructions 1, 2, and 3, is whether on the evidence adduced, the plaintiff was guilty of contributory negligence as a matter of law barring a recovery by her under the theory hypothesized in said instructions.

The facts and circumstances attending the accident, as shown by the record, are these: The collision occurred on October 5, 1920, at about 7:30 o'clock, p. m., at the intersection of Morganford road and Arsenal street, in the city of St. Louis, Mo., between an automobile driven westwardly by plaintiff and a west-bound street car operated by defendant on Arsenal street. Arsenal street runs east and west, and Morganford road runs north and south. There are two street car tracks on Arsenal street; the southern track is used for east-bound and the northern track for west-bound cars. Arsenal street and Morganford road are both public streets, 50 and 36 feet wide respectively. The distance from the north rail to the northern track on Arsenal street to the north curb thereof is 15 feet. At the time and place of the accident the said streets were well lighted.

Regarding the manner in which the collision occurred, plaintiff, on direct examination, testified as follows:

"On the night of October 5, 1920, I was "operating an open machine. I came out of the south entrance of Tower Grove Park and went west on Arsenal street. I came into Arsenal street a block east of Morganford road. When I reached Morganford road, I went to turn south thereon. As I came out of the park, I noticed a car going west and one going east, and as I reached Morganford road, I slowed up to the rate of about 5 miles an hour, so that by the time I got there that the cars would be past so I would have a clear road across, and then I put my left hand out to let any one in back of me know that I was going to turn. I glanced back to see if any one was in back of me, and, not noticing anything in back of me, I made the turn, and as I was making the turn my mother called to me and told me that there was a car in back of me. I couldn't see very far, and I glanced back about 25 or 30 feet, and I never noticed anything, so I went to make the turn. At this point a street car could be seen a good distance, about 200 or 300 feet in the evening; it is all lit up. I was 15 feet east of Morganford road when I gave the signal, and it was between this point and Morganford road "that I looked to see whether there was a car coming soon as my mother called that the car was right in back of us, I turned the machine to the right and tried to get over on the north side of the track again. Before I made this turn back, and when my mother called my attention to the car, my machine was right between the rails of the west-bound track. I was running about 30 feet on the tracks before I made the turn. This was before I glanced back to see if there was anything back of me. When I first came out of the park, I was running along the drive, and as I reached Morganford road I gradually got to the west-bound track. My two left wheels got on the west-bound track about 30 feet east of Morganford road. When the street car struck the rear end of the machine, part of my machine was on the left tracks and the other part between the two tracks. I had not got to Morganford road yet when I was struck. I was about 5 feet east of the east curb line of Morganford road at the time I was struck. I was about 10 feet east of the east curb line on Morganford road when my automobile first got on the west-bound track. The street car struck the left rear fender, and on the left side in the back. It knocked the automobile about 25 feet and continued to run 100 feet after the collision. It was traveling at a speed of 25 or 30 miles."

On cross-examination, plaintiff testified as follows:

"When I first entered the west-bound tracks, I was about 10 feet east of the east curbing of Morganford road. Previous to that time I was driving along the north side of Arsenal street about 2 feet from the curb, but not all the way; I gradually went toward the track. I was traveling along at about 5 feel north of the north rail of the west-bound track; and at a point 10 feet east of the east curbing of Morganford road I turned from a position of 5 feet outside of the rail towards the west bound track. My automobile was right by the east side of the east curb of Morganford road when I went to make the turn and I then glanced back. I did not glance back before I turned on the track. I was on the tracks when I glanced back. I did not look until I got on the track. I drove about 10 feet on the tracks before I started to make the turn. I was driving 5 feet outside of the rails, and at that point I changed the direction of my...