Burke v. Pappas

• Decision Date: 11 April 1927
• Docket Number: (No. 25827.)
• Citation: 293 S.W. 142
• Parties: BURKE v. PAPPAS et al.
• Court: Missouri Supreme Court

293 S.W. 142

BURKE v. PAPPAS et al.

(No. 25827.)

Supreme Court of Missouri, Division No. 1.

April 11, 1927.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Lucille Burke, a minor, by Mary Burke, next friend, against James Pappas and another, copartners doing business as the Standard Meat & Grocery Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded for retrial.

Mark D. Eagleton, Everett J. Hullverson, and Harry S. Rooks, all of St. Louis, for appellant.

Brackmann, Hausner & Versen, of St. Louis, for respondents.

SEDDON, C.

Plaintiff, a minor about 17 years of age, sued to recover damages resulting from personal injuries alleged to have been caused by the negligent operation of an automobile, owned and operated by defendants in their business upon a public street, in the city of St. Louis. Plaintiff, a pedestrian, was injured at the intersection of Franklin avenue and Sixteenth street, about 5:30 p. m. on December 14, 1922. The petition charges defendants with several acts of negligence, but the cause was submitted by plaintiff to the jury solely upon the humanitarian or last chance doctrine of negligence, the specification of which negligence, of as pleaded in the petition, is as follows :

"That the defendants, their agent and servant, did negligently and carelessly fail to stop or slacken the speed of said automobile, or turn same aside, or give a timely warning of the approach of said automobile after they saw, or by the exercise of ordinary care on their part could have seen, the plaintiff in a position of imminent peril to which she was oblivious, in time thereafter by the exercise of ordinary care with the means and appliances at hand and with safety to persons riding in said automobile to have stopped the same, or to have sufficiently slackened the speed thereof, or to have turned the same aside, or to have given a timely warning of the approach of said automobile, and thus and thereby avoided striking or injuring the plaintiff."

The answer is a general denial and a plea of contributory negligence, in that it is charged in the answer that plaintiff negligently failed to look and to listen for approaching vehicles, and that:

"Plaintiff negligently and carelessly failed to stop or alter her course after she saw, or by the exercise of ordinary care could have seen, defendants' automobile in motion and approaching in time, by the exercise of such care, to have avoided colliding therewith."

The reply is a general denial.

Plaintiff was walking in a westerly direction on the south side of Franklin avenue, using the usual crosswalk for pedestrians. She was accompanied by a girl friend, who is about the same age as plaintiff. Franklin avenue is an east and west street, and Sixteenth street is a north and south street, and the roadway of each street is about 40 feet wide. The collision occurred after dark, but the evidence tends to show that the intersection was fairly well lighted. The streets were wet from a recent rain and there was a light drizzle of rain falling at the time of the collision. There is a street railway track along Franklin avenue, located about the middle of the roadway.

Plaintiff testified that she and her girl companion were crossing from the east to the west side of Sixteenth street at its intersection with Franklin avenue, on the public crossing on the south side of Franklin avenue; plaintiff was on the north and her friend was on the south, or plaintiff's left, side; when plaintiff left the curbing on the east side of Sixteenth street, she looked to see If there was any approaching traffic; she first looked north and saw an automobile about 10 feet north of Franklin avenue, traveling at a slow rate of speed, and plaintiff thought she could cross before the automobile would reach the intersection; she then looked south, and did not look north again until she reached the path of the automobile, when she saw the glare of the head lights, and the next she knew the automobile had hit her, throwing her about 10 feet to the northwest; she was in the middle Sixteenth street when she was struck and was walking on the crossing used by pedestrians in crossing Sixteenth street; when she saw the glare of the headlights, the automobile was "almost on top of her," and "it was hardly a foot away"; there was a west-bound street car, which had stopped on the east side of Sixteenth street just prior to the collision, and the automobile passed in front of the street car without waiting for the street car to start; after the automobile struck plaintiff, it went about 10 feet farther and parked at the southwest curbing; it was dark at the time, but the street lights were lit; she took about two steps off the curb when she looked north and saw defendants' automobile, which was then about 10 feet north of Franklin avenue, coming south; the automobile had not reached Franklin avenue; plaintiff did not see the automobile again until it struck her; the lights on the automobile were very dim; the first plaintiff knew was that "the automobile was right on top of me"; after having seen the automobile at the northwest corner, plaintiff did not see it again until "It was right on top of her," and in the meantime she had been looking south; there were no automobiles coming from the south; plaintiff did not hear a horn sounded; the radiator of the automobile struck her on the hip and arm, and the automobile went 10 feet after striking her.

Plaintiff's girl companion testified that she and plaintiff were walking westwardly on the south side of Franklin avenue until they reached Sixteenth street; before witness stepped into Sixteenth street, she looked both east and west and also looked south, and then stepped off the curb and looked north and "didn't see anything coming at all"; plaintiff was on witness' right-hand side; witness did not see the automobile until it was almost upon them; did not believe it was more than a foot away when she saw it; witness and plaintiff were then in the middle of Sixteenth street; there was no other traffic coming from either the south or the north at the time; did not notice any one else crossing the street at the time; it was a dark night, but the streets were lighted, and it was fairly light at the time; witness felt the impact of the automobile and knew that it was of terrific force; witness was knocked a few feet and was then caught by one of the wheels; when witness got upon the sidewalk, the automobile was then 10 or 15 feet from the point of collision; plaintiff was hit first and was thrown against witness; witness did not hear any horn sounded; her hearing was good on that day; when witness and plaintiff reached the curb, they quit talking and looked around to see if there was any traffic approaching; they stopped talking after they reached the curb, and did not see the automobile at that time; they walked about 4 or 5 feet to the middle of Sixteenth street; witness did not look any mole from that time on; witness believed she walked about 4 or 5 feet before she was struck; witness and plaintiff were in the middle of the street, not on the west side, when they were struck; the automobile went 10 or 15 feet farther after striking witness; plaintiff was thrown about 8 or 10 feet into the air and fell; it was "pretty still around the place of the accident"; witness did not hear the roar of the motor until the automobile was almost upon them, about a foot away.

Tie driver of the automobile, defendants' employee, was offered as a witness by plaintiff. He testified that, on December 14, 1922, about 5:30 p. m., he was driving defendants' automobile south on the west side of Sixteenth street, well over toward the west curl, and, as he approached Franklin avenue, he saw a street car going west, which car later passed, and then he continued south acrcss Franklin avenue; when he was about half way across Franklin avenue, or about 20 feet from the south curb, he saw some people crossing from the east to the west side of Sixteenth street at the south crossing of Franklin avenue; witness blew the Klaxon horn of the automobile, and the people stopped; thereafter, he continued to look to the east and west and did not again see these people crossing until the automobile struck plaintiff; did not see plaintiff walk west after she stopped, and, when plaintiff stopped, she was about 2 or 3 feet east of the path of the automobile; the automobile moved a straight line, southwardly, and, during the time it was crossing Franklin avenue, the automobile moved at a rate of speed of abort 2 miles per hour; witness made the stop in possibly a foot after striking plaintiff, and made the stop by putting on the brakes hard; the automobile skidded, but witness succeeded in making the stop within 1 foot; it was drizzling rain at the time, and there were drops of rain on the windshield of the automobile; did not know in what direction the plaintiff was looking after witness saw her stop, when the automobile was 20 feet from plaintiff; witness "could have stopped within 2 feet any time after seeing t he plaintiff, had I cared to do so"; when witness got to Franklin avenue, at the north side, he stopped the automobile to permit the street car to pass, before witness attempted to cross Franklin avenue; witness started across in low speed and never changed that speed at any time before the accident; witness blew the horn at the north side of Franklin avenue and blew it again in the middle of Franklin avenue to warn the people who were crossing on the south side of the street; when witness blew the horn, the people stopped approximately in the middle of Sixteenth street, and when they stopped, witness proceeded; when witness—

"got over there, I found these girls in front of my car; I did not see them again until they were right in front of the machine; as soon as I saw these girls in front of my machine, 1 put on my brake and jammed it down tight; 1...