Braun v. Wells

• Decision Date: 05 November 1924
• Docket Number: No. 18579.,18579.
• Citation: 267 S.W. 98
• Parties: BRAUN v. WELLS
• Court: Missouri Court of Appeals

267 S.W. 98

BRAUN v. WELLS

No. 18579.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge. "Not to be officially published."

Action by Amanda Braun 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 Ernest A. Green, all of St. Louis, for appellant.

Nolan & Harbinson, of St. Louis, for respondent.

BECKER, J.

This is a suit by plaintiff against defendant to recover damages on account of personal injuries alleged to have been received by plaintiff as the result of a collision between an automobile in which she was riding and a street car moving southwardly, operated by defendant on what is known as the Meramec Highlands division, and at the intersection of the street car tracks on defendant's private right of way and Greeley avenue in Webster Groves, Mo., on October 29, 1922, about 10 o'clock p. m.

The petition contains three assignments of negligence: First, failure to sound a gong or bell upon approaching the crossing; second, operation of the car at an excessive rate of speed, to wit, 25 miles per hour while approaching and crossing Greeley avenue; third, failure to stop the street car within the shortest time and space possible after the discovery of plaintiff's peril.

The answer of defendant was a general denial, coupled with pleas of contributory negligence on the part of plaintiff in failing to warn the driver of the automobile in which she was riding of the approach of the street car, and the failure to look or listen for the approaching car, when by so doing she could have discovered the presence of the street car in time to have warned the driver of the automobile, thereby averting the collision.

The reply of the plaintiff was a general denial of all affirmative allegations set up in defendant's answer.

At the trial of the case the defendant re, quested an instruction in the nature of a demurrer, both at the close of plaintiff's case and again upon the close of the entire case, each of which was refused. The case was submitted to the jury upon the first and second assignments of negligence in plaintiff's petition, namely, that of failure to sound a gong or bell upon approaching a crossing, and operating the car at an excessive rate of speed, a verdict resulting in favor of the plaintiff, assessing her damages at the sum of $3,000, from which judgment the defendant prosecutes this appeal.

The sole assignment of error urged here is that the court erred in refusing to give to the jury at the close of plaintiff's case, and at the close of all the evidence, the instructions requested by the defendant in the nature of demurrers to the evidence, because the plaintiff was guilty of contributory negligence as a matter of law. The point has been well briefed and argued, but after a careful consideration of the entire record before us, we have come to the conclusion that the demurrers were well ruled.

For the purposes in hand, we may consider that at the intersection of the defendant's private right of way with Greeley avenue in Webster Groves, Mo., the right of way runs north and south and Greeley avenue east and west, and that there are two sets of tracks upon the right of way; that on the occasion in question, at about 10 o'clock at night, the automobile in which plaintiff was riding was being driven in about the center of Greeley avenue westwardly as it approached the west rail of defendant's west-bound car track; that the machine in question was a left-hand drive car, being operated by plaintiff's husband, and that plaintiff was sitting in the front seat to the right of him; that the building lot at the northwest corner of the said intersection of the street and right' of way is some 4 to 7 feet above the level of the intersection of the right of way and Greeley avenue; that on top of said "embankment" and at the edge thereof and running parallel with the right of way is a hedge some 2½ to 3 feet high; that at or near the corner of this lot there is also a large drooping mulberry or catalpa tree; that the embankment, hedge, and tree form an obstruction to the view of those riding in vehicles who approach the right of way from the west on Greeley avenue; that plaintiff and her husband were thoroughly conversant with the situation at this particular crossing, having passed over it many times prior to the occasion on which the collision occurred; that at the northwest corner of the said intersection there is a large pole some 20 to 30 feet in height, suspended from which was a group of three incandescent lights attached to a reflector which was so arranged that the light therefrom was reflected directly upon the intersecting portion of the right of way and said Greeley avenue.

Plaintiff herself testified that as she and her husband approached the intersection, her husband brought the automobile to a complete stop with the front thereof 2 feet from the west rail of the west-bound car track; that in that position she and her husband were distant from the track about 10 feet, in which situation they had a clear view of the track to the north of 30 feet; that both her husband and she looked and listened when the automobile was thus stopped, and that, though her hearing and eyesight are excellent, she neither heard nor saw anything of an approaching car; that she thereupon exclaimed to her husband, "It is all right"; that her husband then started the automobile forward at a speed of 2 or 3 miles per hour, and had gotten the front of the automobile about in the center of the rails of the westbound car track when she suddenly saw a street car bearing down upon them, "it looked about 10 feet away"; that thereupon she exclaimed to her husband, "Oh, Adolph"; that the street car struck the automobile at the front end on the left, turning it toward the south, and dragged it along with it so that when the street car and automobile stopped the street car had crossed Greeley avenue and the rear door of the street car was approximately even with, and the front wheels of the automobile over, the south curb line of Greeley avenue. Plaintiff further stated that she could not tell at what speed the street car was approaching when she first saw it bearing down upon them; that its bright headlight drew her attention to it. On cross-examination this witness testified:

"Q. How far can one of those headlights be seen in the night time? A. Cannot be seen when there is any other light around. Q. You mean you cannot see it at all? A. No, sir. * * * Q. Which direction were you looking as you crossed the tracks? A. The way the car was coming—from the north. Q. You mean that you were looking all of the time in a northwardly direction from. which the car was coming; is that it? A. Yes, sir. Q. You had your eyes `turned in that direction from the time that you started up? A. Yes, sir. Q. After you had stopped within 10 feet of the rails until you were hit, is that it? A. Yes, sir. Q. But you couldn't see the headlight until it got within 10 feet of you? A. No, sir."

On cross-examination plaintiff further stated that when her husband had stopped the automobile on the track, he undertook to shift geaxs and back off of the tracks; that he did not have time enough to get off of the track before the car struck the automobile.

E. A. Braun testified that he was the husband of plaintiff and was driving the automobile at the time in question; that he was familiar with the intersection and lived within 3½ blocks thereof; that he brought the automobile to a stop with the front of the machine "within about 2 feet" of the car tracks; that he looked north and south and listened, and neither heard nor saw any car approaching, and his wife looked and remarked, "It is all right"; that the point where he stopped the automobile he was sitting about 8 feet from the nearest rail; that he then shifted into second gear and started the car and looked to the north, and he got "the flash of a light coming"...