Bruns v. United Rys. Co.

• Decision Date: 06 March 1923
• Docket Number: No. 17681.,17681.
• Citation: 251 S.W. 760
• Parties: BRUNS v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

251 S.W. 760

BRUNS v. UNITED RYS. CO. OF ST. LOUIS.

No. 17681.

St. Louis Court of Appeals, Missouri.

March 6, 1923.

Rehearing Denied May 22, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Louis H. Bruns against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and J. F. Evans, all of St. Louis, for appellant.

Miller & Kleinschmidt, of Hillsboro, and Marsalek & Stahlmuth, of St. Louis, for respondent.

NIPPER, C.

This is an action instituted by plaintiff against defendant to recover for damages when plaintiff's automobile truck was struck by one of defendant's street cars at the intersection of Illinois and Cherokee streets, in the city of St. Louis. Plaintiff resides in Jefferson county, Mo., and the truck which was damaged was being driven at the time by his son, Edward Bruns, who was accompanied at the time by Charles Buxton. Illinois avenue runs north and south, and Cherokee street, east and west. Defendant maintained two street car tracks over Cherokee street at the place where the accident occurred. East-bound cars traveled over the south tracks, and west-bound cars over the north tracks. Plaintiff's driver was proceeding north on Illinois avenue, and as he approached Cherokee street he was about 8 feet from the east curb of Illinois avenue, and was traveling at the rate of about 5 miles an hour. He testified that upon approaching Cherokee street he sounded his horn several times, and when he was near the south curb line of Cherokee street he looked west to see if a street car was coming over the track nearest him. He saw no car. When he had approached within about 2 feet of the south, or east-bound, track, he looked east, and saw the oncoming car about two car lengths away. This he estimated to be about 100 feet. Neither the driver nor his companion undertook to place any estimate upon the speed at which the street car was traveling at that time. As the right rear wheel of the truck reached the south rail of the west-bound track, the driver swerved the automobile truck slightly to the left, or west, in an effort to avoid being struck by the street car. Buxton, who accompanied the driver and was in the seat with him at the time of the accident, testified to substantially the same state of facts as the driver.

One witness, who saw the accident, testified that the street car was traveling at about 12 miles per hour. There was evidence tending to show that at the point where the accident occurred, this street car, at the time and place in question, going 12 miles an hour, could have been stopped, with the means and appliances at hand, and safety to the passengers on the car, within a distance of 22 feet.

At the close of plaintiff's case, the defendant asked an instruction in the nature of a demurrer, which the court refused to give. The evidence on behalf of the defendant was to the effect that the street car and the automobile truck were both traveling at about the same rate of speed, and that the driver of the street car did everything within his power to stop the car after plaintiff's automobile came into a position of peril.

The allegation of negligence set out in the petition are that—

"Defendant negligently operated said street car at a high, unsafe, and dangerous rate of speed, negligently failed to sound any reasonable, adequate, and timely warning of the approach of said street car, negligently failed to keep a vigilant watch ahead of said street car for vehicles upon and moving toward the track upon which said car was running, and negligently failed to apply the brakes to, slacken the speed of, and stop said street car.

"Plaintiff further states that defendant, by keeping a vigilant watch ahead of said street car, might have known that said motor truck was in danger of being struck by said street car, in time to have averted the damage herein complained of by exercising ordinary care to sound a warning of the approach of said street car, or by exercising ordinary care to apply the brakes to, slacken the speed of, and stop said street car in the shortest time and space possible, consistent with the safety of the persons then and there upon said street car, and plaintiff further states that defendant then negligently failed to apply the brakes to, slacken the speed of, or stop said street car, and then negligently failed to sound any reasonable, timely, or adequate warning of the approach thereof."

At the request of the plaintiff, the court gave the following as instruction No. 1, Which defendant claims contains reversible error:

"The court instructs the jury that if you find from the evidence in this case that on the 19th day of December, 1918, plaintiff, through his agent and servant, was operating a motor truck, owned by plaintiff, in a public highway northwardly on Illinois avenue toward and across Cherokee street, in the city of St. Louis, and in the state of Missouri, and that defendant, through its servants and agents, then and there operated a west-bound street car in a public" highway, on Cherokee street, toward said motor truck, and that said motor truck was then and there in a position of danger where it would be struck by said street car, and that the motorman in charge of said car, by exercising ordinary care to keep a watch ahead of said street car, then and there could have discovered that said motor truck was in danger of being struck by said street car, and then could have prevented said street car from striking said motor truck, by stopping said car in the shortest time and space he could, by the exercise of ordinary care, with the appliances then at hand, consistent with the safety of the persons then and there upon said street car, and that said motorman then failed to exercise ordinary care to stop said car in the shortest time and space he could, by the exercise of ordinary care, with the appliances then at hand, consistent with the safety of persons then and there upon said street car, and thereby directly and proximately caused and permitted said street car to strike and damage said motor truck, then you will find against defendant and in favor of plaintiff, whether you find plaintiff, through his agent and servant, wee guilty of contributory negligence or not."

Other matters of evidence bearing upon the result reached in this case can be better dealt with by referring to same in the course of the opinion.

There are three assignments of error made by defendant which are urged as grounds for reversal: First, that the court erred In overruling its demurrer offered at the close of plaintiff's case; second, that the court erred in refusing to strike out the vigilant watch ordinance which plaintiff introduced and read in evidence; third, that the court erred in giving and reading to the jury instruction No. 1 for plaintiff.

Defendant contends its demurrer should have been sustained,...