Burke v. Laurie

• Decision Date: 20 June 1933
• Docket Number: No. 22430.,22430.
• Parties: BURKE v. LAURIE.
• Court: Missouri Court of Appeals

61 S.W.2d 268

BURKE v. LAURIE.

No. 22430.

St. Louis Court of Appeals. Missouri.

June 20, 1933.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be published in State Reports."

Action by James Burke against Joseph S. Laurie. From a judgment in favor of the plaintiff, the defendant appeals.

Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, for appellant.

Gallant, Hannigan & Summer and Robert L. Aronson, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $6,000; and from the judgment rendered, defendant has duly appealed.

The case grows out of an accident which occurred on September 9, 1930, at the intersection of Lindell boulevard and Sarah street in the city of St. Louis, when plaintiff was struck by defendant's automobile. The sole issue on this appeal is whether the evidence was sufficient to have warranted the submission of the case to the jury for negligence under the humanitarian doctrine, the predicates of which were that defendant might have avoided the accident by stopping his automobile or by sounding a warning of its approach.

Lindell boulevard runs east and west, while Sarah street runs north and south; the former being approximately sixty feet, and the latter thirty feet, in width. Lindell boulevard especially is a much-traveled thoroughfare, with Sarah street so in a lesser degree; and at the northeast and southwest corners of the intersection are the conventional red and green lights to regulate the flow of traffic.

There seems to be no doubt that at the time in question some repairs were being made on Lindell boulevard, either by way of resurfacing the street or else in connection with the construction of a sewer. At any rate, at a point even with the west curb line of Sarah street, and some ten or fifteen feet out from the north curb of Lindell boulevard, a portion of the street had been shut off by barricades, leaving a space, however, for a single line of west-bound cars to pass on either side of the obstruction, that is, between the obstruction and the north curb, and between the obstruction and the white line to the south of it which indicated the center of the street and separated east-bound and west-bound traffic.

Plaintiff was walking southwardly along the west side of Sarah street; and when he reached the northwest corner of the intersection, before he stepped out into Lindell boulevard, he glanced at the traffic signal and saw that the red light was against the cars on Lindell boulevard. He observed that two or three west-bound automobiles were at a standstill on the east side of Sarah street, waiting for the sign to change. He thereupon started across Lindell boulevard, and walked steadily and continuously south, without again looking to his left, until he reached a point approximately midway in the street, where he was suddenly struck by defendant's west-bound automobile. Plaintiff's testimony was that he did not see defendant's automobile at any time before he was struck; that he did not hear any warning given of its approach; and that he did not pause in his course to let any eastbound traffic go by, there being no east-bound traffic at the intersection at that particular moment.

The fact of the accident being conceded, the chief point of controversy at the trial was whether defendant or one Rohlfing, the driver of a service car, was responsible for it. Of course, contributory negligence was also pleaded as a defense to the assignments of primary negligence; but that issue went out of the case when plaintiff elected to stand upon his theory of negligence under the humanitarian doctrine.

Defendant's own testimony, both by deposition which was read on the part of plaintiff as an admission against interest, and also while on the stand in his own behalf, was that his was one of the automobiles which was stopped east of Sarah street, waiting for the light to change; that he was stopped immediately north of the white line which divided Lindell boulevard; and that Rohlfing's automobile was standing immediately north of his car. Defendant was driving a Ford roadster, and Rohlfing a Packard sedan. As the signal changed, defendant started forward; and when he was about halfway across Sarah street, he first saw plaintiff standing on the white line at a point about five feet west of the continuation of the west curb line of Sarah...