Brooks v. Harris

• Decision Date: 03 December 1918
• Docket Number: No. 15270.,15270.
• Citation: 207 S.W. 293
• Parties: BROOKS v. HARRIS.
• Court: Missouri Court of Appeals

207 S.W. 293

BROOKS v. HARRIS.

No. 15270.

St. Louis Court of Appeals. Missouri.

December 3, 1918.

Rehearing Denied Jan. 6, 1919.

Appeal from St. Louis Circuit Court; Leo Rassieur, Judge.

"Not to be officially published."

Action by Robert W. Brooks, Jr., minor, by his next friend, Robert W. Brooks, against Ben Harris. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Affirmed.

Bryan, Williams & Cave and A. S. Phillips, all of St. Louis, for appellant.

Watts, Gentry & Lee, of St. Louis, for respondent.

REYNOLDS, P. J.

About 8:30 o'clock on the evening of January 9th, 1915, Robert W. Brooks, Jr., a minor, 19 years of age, hereafter referred to as plaintiff, although the action is in the name of his father, as guardian and next friend, was struck by an automobile owned by defendant and driven by defendant's chauffeur, at or about the intersection of Washington and Taylor Avenues, streets in the city of St. Louis.

Plaintiff testified that on that evening he had come from his residence on to Taylor Avenue and was walking south along the east sidewalk of that street, intending to cross Washington Avenue and go on south to Olive Street. He was a student at Washington University. Some 12 years before the accident his eyesight had become impaired by an accident, the impairment, however, did not affect him at all in getting around; he had always gone everywhere he wanted about the city, day or night, by himself. He testified that he could not see everything but had always been careful when walking; could see wagons and automobiles, particularly the lights of the latter, from between two to three hundred feet distant. Walking along the east side of Taylor Avenue toward the south, he came to the northeast corner of the intersection of Taylor and Washington Avenues. When he reached the corner lie stopped before crossing Washington Avenue, on this northeast corner of Washington and Taylor, and looked east and west and listened, and lie testified that there "was absolutely no horn blown, absolutely none"; looking to the east, he saw no automobile. There was a large truck on Washington Avenue, at the northeast corner of Taylor, and about 8 feet east of Taylor, against the north curb. When he looked east on Washington Avenue, he was on the north side of this truck and could see "right in between the truck and the street lights"; could see the middle of Washington Avenue, "right in between there"; was looking out for automobile lights. There were none in sight. After he had satisfied himself that there was nothing coming in any direction, he testified he stepped deliberately from the curb and walked rapidly across the street; had gone about 10 or 11 feet from the north curb of Washington Avenue when "instinctively I turned and saw those fiery eyes * * * of the automobile," referring, as he said, to the headlights; was struck with a fearful blow, hurled to the ground and, to quote him, "the monster was on me and rolled me over and over and crushed me beneath it." He was struck instantaneously at the time he discovered these headlights. The whole automobile passed over him. The front of it struck him and also caught him and dragged him over the bricks and rolled him over and crushed his shoulders together and the front wheel passed over his left ankle and the rear wheel over both legs. Plaintiff testified that he tried to get up after the accident but could not. The machine had then passed him and he was behind it; was carried by several men into a physician's office nearby.

As no complaint is made of the amount of the verdict, it is unnecessary to set out the testimony of plaintiff, or of the attending physician, as to the extent and nature of his injuries.

On cross-examination, plaintiff repeated substantially the testimony as is given in his direct examination, repeating that he had stopped within about 2 or 3 feet from the northern curb of Taylor Avenue, and about 6 feet from the east curb of Taylor, and about 2 or 3 feet from the truck, and it was then that he looked; looked and listened and then started to walk deliberately but rapidly across Washington Avenue. Asked if after he had started to walk across whether he at any time stopped again to look and listen, he answered that he always listened when he walked but he did not stop before he was struck; got a "fiery flash" of the car just as he was struck and that was all he remembered; thought he must have been looking east then but until then he had not looked east after crossing the curb. Asked if he listened, plaintiff repeated that he always listened when he walked; listened to noises that are liable to come from any vehicle on the street; could tell before he got to the street whether there was anything coming either way. If an automobile had been very near on this particular night he could have heard it; he could have heard it, he should say, for at least 100 feet; did not hear this particular automobile, however, until it was on him, adding "that there are some automobiles that run so easy they deceive me, but that is very seldom the case, and my eyesight is sufficient to protect me in any event;" at the time was walking at his ordinary gait, which is neither fast nor slow, but medium. On this occasion he "absolutely did not run" and when he stepped out in front of the truck he did not hurry; was going at his ordinary gait— medium.

A witness, called by plaintiff, testified that he did not see the automobile before it struck plaintiff. At the time he saw the automobile it was not going at a very great rate of speed. It stopped just a little over its length from the time witness saw it. The front wheel of the car, when it stopped, was from 5 to 7 feet south of the north curb. When he saw plaintiff, plaintiff was lying behind the car which had passed over him—about a foot over him. The automobile, when it stopped, was at about the middle of Taylor Avenue, on the car tracks, and plaintiff was lying between the west car tracks, and the automobile was in the act of stopping, and stopped within 3 or more feet of its own length. Witness did not hear the automobile give a warning of any kind. As a matter of fact, he testified, he heard no signal of any kind at that time and what attracted his attention to the automobile was the fact that something fell under it, and that it had run over that object. There was no other moving vehicles or traffic in the vicinity at the time but this automobile.

This is substantially the material testimony for plaintiff.

It was not disputed that at the time the chauffeur was in the employ of defendant and in discharge of his duties as such.

The chauffeur, who was driving the car, called as a witness by defendant, testified that he was going at about 12 or 15 miles an hour when from 150 to 200 feet east of Taylor Avenue on Washington Avenue and on the right or north side of Washington Avenue, and slowed down to 5 or 6 miles an hour when about 50 feet east of the truck; that the ground or street was "sweating," meaning that it was damp; that his automobile, a large Pierce-Arrow, did not make any noise as it ran along; that he had sounded his horn when about 50 or 75 feet east of the truck; saw the truck but plaintiff came out so fast from behind it that he did not see him.

The present action is to recover damages for the injuries so suffered by plaintiff, the petition charging negligence on the part of defendant's chauffeur, who was running the automobile, first, in approaching plaintiff, a Pedestrian, upon the travelled part of Washington Avenue and not at the time on the sidewalk and in negligently failing to slow down the automobile, and in negligently failing to give a timely signal with a horn, bell or other signalling device on the automobile; second, upon approaching Taylor Avenue at its intersection with Washington, in negligently failing to slow down the automobile, or to give a timely warning with a bell, horn or other signal, although his view was obstructed as defendant's chauffeur in the automobile approached the intersecting highway; third, negligently failing to drive the automobile at the time and place in a careful and prudent manner and at a rate of speed so as not to endanger property, life or limb of any person; fourth, that the chauffeur negligently failed to use the highest degree of care that a very prudent person would use under like circumstances.

The answer was a general denial and plea of contributory negligence, setting out the alleged contributory negligence specifically.

There was a trial before the court and a jury.

At the close of the testimony in chief and again at the close of all the testimony defendant demurred and the demurrers were overruled. The court gave two instructions on motion of plaintiff and of its own motion. It also gave a number of instructions at the instance of defendant, modifying some of them, and refused two asked by defendant.

The principal instruction given at the instance of plaintiff told the jury, in substance, that the law requires every person operating an automobile upon a public street to use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury or death to persons on or travelling over, upon or across such public street; and any person so operating an automobile when approaching an intersecting highway, or the corner of a highway, where the operator's view is...