Breitschaft v. Wyatt

• Decision Date: 02 February 1943
• Docket Number: No. 26238.,26238.
• Citation: 167 S.W.2d 931
• Parties: BREITSCHAFT v. WYATT et al.
• Court: Missouri Court of Appeals

167 S.W.2d 931

BREITSCHAFT v. WYATT et al.

No. 26238.

St. Louis Court of Appeals. Missouri.

February 2, 1943.

Rehearing Denied February 19, 1943.

Appeal from St. Louis Circuit Court; F. E. Williams, Judge.

"Not to be reported in State Reports."

Action by Frank Breitschaft against Bige Wyatt, doing business as Wyatt's Cab Company, and another for personal injuries. Judgment for plaintiff, and defendants appeal.

Affirmed.

Henry D. Espy and Roy Lowe, both of St. Louis, for appellants.

Frank E. Mathews, of St. Louis, for respondent.

ANDERSON, Judge.

This is a suit for damages for personal injuries sustained by plaintiff as a result of being struck by an automobile owned by defendants and operated by their employee. From a verdict and judgment for plaintiff, defendants appealed.

The accident occurred in the city of St. Louis, at the intersection of Grand and Finney avenues, on the morning of January 28, 1940, at about 5:10 a.m. Grand Avenue is a north and south street, 35 or 40 feet wide, and Finney Avenue is an east and west street, approximately 30 feet wide. Just prior to the accident, plaintiff, a policeman on duty, and another officer, named Weingart, had walked east from Vandeventer Avenue to the southwest corner of Grand and Finney. Officer Weingart, upon reaching the intersection, crossed Grand Avenue to make a telephone call at a callbox on the east side of Grand Avenue. Plaintiff, however, remained standing on the corner of the intersection for a few seconds. Then he, also, proceeded to cross the street to the east side of Grand Avenue. Before doing so, he looked south along Grand Avenue and west along Finney Avenue. Seeing no cars approaching from either direction, he stepped into the street and took two or three steps, which carried him a distance of from seven to nine feet from the west curb and ten to twelve feet from the center line of Grand Avenue. At that time and place, while preparing to again look south along Grand Avenue, he was struck by a taxicab driven by Nathaniel Green, an employee of defendants. At no time did he see the automobile. In fact, at the trial he stated that he did not know what had struck him. However, one Frank Furst, who was operating an automobile north on Grand Avenue and in the rear of defendants' cab, stated that plaintiff was struck by the left rear fender of defendants' cab as the driver attempted to make a left turn west into Finney Avenue.

Furst had been following the taxicab for at least two blocks. When the cab reached Windsor Avenue, which is one block south of Finney Avenue, it was 10 to 15 feet in front of Furst and about five feet from the east curb of Grand Avenue. As Furst crossed Windsor, he blew his horn as a signal for Green to pull over and let him pass, but Green did not respond. Both cars, according to Furst's testimony, then proceeded north at about 20 or 25 miles per hour. Furst also testified that when Green reached a point 15 or 20 feet south of the south curb line of Finney, the left side of his cab was over the center line of Grand Avenue, and he began to turn to the left. At that time Furst was 8 to 10 feet in the rear of defendants' cab. As Green started to turn, Furst put his foot on the brake to slow down his car, whereupon his car started to skid as he was 4 or 5 feet behind Green, and thereafter he collided with the rear of defendants' cab. Furst stated that he saw the left rear fender of defendants' cab strike plaintiff after Green had started to make the left turn into Finney Avenue.

Officer Weingart testified that he looked up just after hearing the crash, and observed the taxicab about ten feet south of the center line of the intersection, headed in a northwest direction, its right rear wheel about at the west rail of the southbound streetcar track; that the Furst car was also traveling in a northwest direction, its left front fender about ten or twelve feet east of the curb of Grand Avenue. He further stated that the right front of the Furst car hit the left rear of the cab; that the cab thereafter gave a quarter turn and stopped in Finney Avenue, facing southwest, its front end slightly west of the west curb line of Grand Avenue and about six feet from the south curb line of Finney Avenue. The Furst car stopped with its right rear wheel about at the west rail of the southbound streetcar tracks and faced northwest, its left front touching the left rear of the taxicab, so that both cars as they stood after the accident formed a "V". He also stated that at that time plaintiff was lying in the street, six feet east of the west curb of Grand Avenue and just south of the "V" formed by the two cars after the collision, his head pointed north, and his feet on the south curb line of Finney Avenue.

Plaintiff, Furst, and Weingart, all testified that they heard no horn sounded prior to the collision.

Nathaniel Green, the driver of the taxicab, testified that until he crossed Windsor Avenue, he had been driving between 20 and 25 miles per hour; that he then checked his speed, rolled down the window of his cab, put his foot on the brake, and pulled over to the center of Grand Avenue to let the car behind him know that he was going to turn into Finney Avenue; that by the time he reached Finney Avenue he had reduced his speed to 8 to 10 miles an hour. He further stated that he did not at any time blow his horn, and when he first applied his brakes he was 40 or 50 feet from Finney Avenue, traveling 18 to 20 miles per hour. He stated further that traveling 10 to 15 miles per hour, under the conditions prevailing at the time, and with safety to himself and to his passenger, he could have stopped his car in four or five feet.

The plaintiff, by two instructions, submitted the issue of negligence, Instruction No. 1 submitting the issue under the humanitarian doctrine, and Instruction No. 2 submitting the charge of defendants' negligent failure to pass to the right of the intersection before making the left turn into Finney Avenue.

The jury found for plaintiff in the sum of $2,500, and defendants appealed from the judgment on the verdict.

Appellants first assign as error the Court's refusal to give and read to the jury the instruction in the nature of a demurrer to the evidence requested by defendants at the close of the whole case. In support of this assignment, they contend, first, that plaintiff was guilty of contributory negligence as a matter of law, and, second, that no case was made under the humanitarian doctrine.

There is no merit to the contention that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff's evidence shows that he looked south...