Bosley v. Wells

• Decision Date: 05 February 1924
• Docket Number: No. 17680.,17680.
• Citation: 260 S.W. 125
• Parties: BOSLEY v. WELLS.
• Court: Missouri Court of Appeals

260 S.W. 125

BOSLEY v. WELLS.

No. 17680.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Tony Bosley against Rolla Wells, Receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

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

C. J. Anderson, of St. Louis, for respondent.

NIPPER, C.

This is an action for damages alleged to have been sustained by plaintiff on January 18, 1920, when his automobile was struck by one of defendant's street cars being operated over and along Gravois avenue, in the city of St. Louis. The collision occurred at the intersection of Dahlia and Gravois avenues. Plaintiff was driving his Packard limousine in a northeasterly direction on Gravois avenue. Gravois avenue runs northeast and southwest. On the date above mentioned, plaintiff and six other passengers were in this limousine and were driving northeastwardly on Gravois avenue, between 4 and 5 o'clock in the afternoon. Plaintiff was driving, and when he reached Rosa avenue he looked back and saw a street car 3½ blocks behind him. He drove on for another block to Dahlia avenue, and, after crossing the same he stopped on the northeast corner, with his left wheels within about one foot of the street car track, for the purpose of letting one of the passengers get out of his automobile. This stop was made close to the track, because he was unable to get further away on account of the drifted snow. The street car was then 2½ blocks away, coming in the same direction in which plaintiff was traveling. Street cars stop to take on passengers on the southeast corner of this intersection, and, at the time plaintiff stopped, there were several people standing at the usual place where persons stand to await the arrival of the street car so that they may become passengers thereon. This fact was noted by plaintiff at the time. He was the width of the street from this stopping place of the street car. When he stopped, a Mr. Snaymann, who was riding in the rear seat, opened the door on the left side to get out of the limousine, at which time the street car came along and struck the limousine from the rear, inflicting damages estimated at nearly $1,700. No point being made as to the excessiveness of the verdict, it is unnecessary to describe these damages in detail. The limousine was a left-hand drive, and the window near plaintiff was open. There was no evidence offered as to the rate of speed at which the street car was traveling, but the evidence did disclose that the street car, after it struck the limousine, stopped within a distance of 150 to 200 feet. Most of the witnesses put the distance at 180 feet. Some of plaintiff's witnesses testified that they heard no warning sound of the street car's approach.

At the close of the plaintiff's case the defendant requested an instruction in the nature of a demurrer, which the court refused to give.

Defendant offered no evidence, but objected to the introduction of any evidence at the beginning of the trial, on the ground that the petition stated no cause of action against defendant. We will refer more particularly to the pleadings in the course of the opinion.

The case was submitted to the jury (1) under the last chance doctrine; and (2) failure to warn.

Plaintiff recovered judgment, and defendant appeals.

There were four assignments of negligence in the petition: (1) Excessive speed; (2) the last chance doctrine; (3) failure to warn; and (4) failure to keep a vigilant watch.

The answer was a general denial, and a plea of contributory negligence.

Defendant urges that the court erred in failing and refusing to sustain its objection to the introduction of any evidence at the beginning of the trial, on the ground that the petition states no cause of action against defendant. This objection was a mere general oral objection made by defendant's counsel at the beginning of the trial. While the case went to the jury on two assignments of negligence only, there is no contention here that the petition does not properly state a cause of action so far as the assignments of negligence with respect to excessive speed or failure to keep a vigilant watch. The objection urged in this court is that the petition does not state a cause of action against Rolla Wells, receiver of the defendant company, and, that the petition fails to allege that the street car which struck plaintiff's limousine was owned by the defendant company. It is further urged that the allegation with respect to negligence under the last chance or humanitarian doctrine does not allege that plaintiff was oblivious.

Plaintiff's petition alleges that the United Railways Company of St. Louis is a corporation, duly incorporated under the laws of this state for the purpose of operating street cars over various streets of the city of St. Louis, and that, during all times stated therein, defendant Rolla Wells was and is receiver of and in full charge and control of the operation of all the properties and business of the United Railways Company; and that the defendants so carelessly and negligently operated one of its street cars on Gravois avenue as to cause and permit the same to strike plaintiff's limousine. The answer begins by admitting that Rolla Wells, at the time mentioned in the petition, was the receiver of the defendant company, and was in charge of the property thereof. Defendant contends that, so far as the allegations of the petition are concerned, the street car which struck plaintiff's limousine was not owned by the United Railways Company, of which Rolla Wells was receiver; but the reference to the petition heretofore made shows clearly that this argument of learned counsel for defendant is without merit and unsound.

As to the other proposition that the count in the petition with respect to the last chance doctrine failed to allege obliviousness, we must also rule adversely to defendant's contention. In the recent case of Banks v. Morris, 257 S. W. 482, not yet [officially] published, our Supreme Court in banc held that, in the application of the last chance doctrine, it was not necessary for plaintiff to allege obliviousness.

The defendant also urges as a ground for reversal...