Bibb v. Grady

• Decision Date: 03 May 1921
• Docket Number: No. 16628.,16628.
• Parties: BIBB v. GRADY
• Court: Missouri Court of Appeals

231 S.W. 1020

BIBB v. GRADY

No. 16628.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Rehearing Denied June 7, 1921.

Appeal from St. Louis Circuit Court; Franklin Ferris, Judge.

"Not to be officially published."

Action by Joseph W. Bibb, administrator of the estate of Grace H. Bibb, deceased, against Robert F. Grady. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Jourdan, Rassieur & Pierce, of St. Louis, for appellant.

J. D. Johnson and Frank A. Habig, both of St. Louis, for respondent.

BRUERE, C.

This action was instituted in the circuit court of the city of St. Louis, Mo., by the plaintiff, as administrator of the estate of Grace H. Bibb, deceased, to recover damages for the death of the deceased, alleged to have been negligently killed by defendant's automobile, while deceased was walking across Belt avenue, near the intersection with Cabanne avenue, in the city of St. Louis, Mo. At a trial a jury awarded plaintiff a verdict of $3,000. From a judgment on that verdict defendant appeals.

The negligence as charged in the petition is:

"That defendant negligently operated and ran an automobile on and along Belt avenue, southwardly towards and at and near its intersection with Cabanne avenue, in a manner and at a speed dangerous to the life and limb of persons traveling over, upon, or across said Belt avenue; that said Grace H. Bibb was then and there walking across said Belt avenue in a southerly direction from the east to the west side thereof and north of, and at and near said intersection with Cabanne avenue, with her back towards said automobile, and in sight of the defendant therein; and that while the defendant was so operating and running said automobile, as aforesaid, he negligently operated and ran the same against and over the said Grace H. Bibb, and inflicted upon her bodily injuries, which then and there caused tier death."

The answer is a general denial, coupled with a plea of contributory negligence. The facts disclosed by the evidence are: The accident occurred on the evening of October 15, 1915, at about 7:30 o'clock on Belt avenue, near the intersection of Cabanne avenue, in the city of St. Louis, Mo. Belt avenue runs north and south.

The deceased, at the time of her death, was about 23 years old. She lived about half a block from the corner of Belt avenue and the Suburban street car tracks. The Suburban street car line runs east and west, on a private right of way, and crosses Belt avenue 219 feet north of Cabanne avenue. The width of Belt avenue is not disclosed in the evidence. A private driveway runs into Belt avenue on the east side thereof. This driveway is some distance south of the Suburban tracks; the exact distance is not given in the testimony. An apartment is located on the west side of Belt avenue near Cabanne avenue. The south end of the apartment is about 50 feet north of Cabanne avenue. There is a down spout, mentioned in the evidence, which is located on the east wall of the apartment opposite a telephone pole located in the west curb line of Belt avenue. The Chamberlain Apartment is located on the northwest corner of Vernon and Belt avenue, north of the Suburban tracks and 123 feet distant therefrom. Belt avenue at the Suburban tracks at the time of the accident was well lighted, but at the corner of Belt and Cabanne avenue it was dark.

No witness testified to seeing the automobile strike the deceased. Two witnesses testified regarding the occurrence. They were Lulu Perkins and Mrs. F. C. George.

Lulu Perkins testified:

"I was standing at the northeast corner of Belt and Cabanne; but I don't know where she was killed. I was coming, on October 15, 1915, from 5459, delivering some clothes. I had four boxes of clothes and I delivered one at 5459 to Mrs. Anderson—I was coming out of the house—I was trying to make it to 5531 Chamberlain before they went to the supper table; I discovered my boxes were untied and I stopped at the corner to tie the boxes up; while stooping over I noticed a lady coming from the east side of the street walking south to me, and I was just stooping in such a position that I thought I had better straighten up because it was dark, so I wouldn't frighten her; in the meantime I had my pocketbook in this hand and I had a present that one of the ladies gave me, and when I stood up I recognized the automobile coming and I heard a bump with a `squeechy' noise and I jumped around and wondered if that lady—so I ran and kind of said to myself—so I came back and fixed up my boxes, walked straight across to the path that leads across the street on Cabanne and Belt that goes west, and when I went to walk across Miss Bibb was lying in the middle of the street; I walked to her feet and—Mr. Grady came too out of his machine, took the body, and put one hand under one arm and one hand under the other and dragged the body out of the street and laid it on the west sidewalk on the west— That was all I seen; I didn't see the machine when it hit her. I do not know what that `squeechy' noise was. I do not know where it came from. I just heard the noise and it made me recognize that something had happened before I heard that bump. I saw the automobile coming. I cannot tell at what speed it was coming. It was going fast, but I don't know the rates—I don't know the rates of the speed. I didn't see the automobile stop; when I saw it it had already stopped. It was standing right on Belt avenue and kind of a little curved to the Cabanne and Belt avenue corner, towards the curb, where the curb turned around west, so that the front wheels of the automobile were standing on Cabanne and the back wheels on Belt avenue, kind of turned, just a little curve like."

Cross-Examination.

"When I heard the bump and the `squeechy' noise, I was standing kind of cater-cornered, and as soon as I heard that I turned around. When I did that the automobile had stopped. I was busily engaged with my bundles that had come untied and I was leaning down, stooped down."

Redirect Examination.

"I was at the corner of Cabanne and Belt. The body was lying when I got there kind of cater-cornered in the middle of the street. It was not near the apartment; it was in the middle of the street—kind of in the middle of the street."

Mrs. F. C. George testified:

Direct Examination.

"I am now living on Belt and Vernon, the Chamberlain Apartments. I remember the night that this young lady was killed, October 15, 1915. I was standing in my window, the farthest window in the apartment; there is a bay window there; I stood in the extreme west one, waiting for my husband, who generally arrives at half past 6; I don't remember whether it was the last one, but it was over on the left side, and he being late I was a little anxious and was watching each car as it came, because supper was long past done and I wanted to get it on the table in time, and watching each west-bound car as it stopped, and, as I say, I was watching—as I was watching I saw a young lady alight and pass in front of the car, walk to the driveway, and passed down the driveway into Belt avenue; with this I heard a thud, and seen these things; previous to that I saw the machine, the back of the machine waiting for the car to pass, and knew that it had passed; with hearing the thud I rushed out of my front door; this made me think that something had happened; so I knew something had happened— I distinctly saw the young lady step off the driveway. She got off a west-bound car. She walked around in front of the car. I saw her clearly. She was going —she first walked south—on Belt avenue, to the driveway, and stepped off of the driveway in the street on the east side; I refer to the driveway that is in that short half block between the track and Cabanne. My apartment is a half block north of Suburban tracks, a short half of a block, because it is not really a half block, just about. This driveway is a few feet south of the Suburban tracks; how far I couldn't state positively; I never measured it. The driveway leads into the street on Belt avenue. I saw the deceased step off the driveway into the street. The distance where I last saw her step into the street—the distance from that point to where I was is a half block. I was at the corner of Vernon avenue. I had no difficulty in seeing the young lady walking down south on Belt avenue to the point where she left the sidewalk and went into the street. There was nothing there to obstruct my view. The light was sufficient where this young lady was walking for me to see her at that distance. After I heard the thud I went down to the scene of the accident. I saw the back of the machine waiting prior to the time I heard this thud. It was on the north side of the tracks going south. It had stopped. I saw a street car stopping to let people off, going west. I couldn't say positively if that car had proceeded or whether it was standing there at the time the automobile was standing there. I saw the automobile start up, I couldn't...