Burow v. St. Louis Public Service Co.

• Decision Date: 05 March 1935
• Docket Number: No. 23078.,23078.
• Citation: 79 S.W.2d 478
• Parties: BUROW v. ST. LOUIS PUBLIC SERVICE CO. et al.
• Court: Missouri Court of Appeals

79 S.W.2d 478

BUROW v. ST. LOUIS PUBLIC SERVICE CO. et al.

No. 23078.

St. Louis Court of Appeals. Missouri.

March 5, 1935.

Rehearing Denied March 18, 1935.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be published in State Reports."

Action by Dorothy Burow against the St. Louis Public Service Company and Red Line Service, Incorporated. From a judgment for plaintiff, the Red Line Service, Incorporated, appeals.

Affirmed.

Strubinger & Tudor and Wm. H. Tombrink, all of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff in a collision between a Ford automobile in which she was riding and a motorbus owned and operated by defendant Red Line Service, Incorporated. The collision occurred on October 31, 1931, about 3:30 o'clock in the afternoon, on highway No. 40, known as the St. Charles road, near Lake Charles Cemetery, about five miles west of St. Louis. The Ford automobile, which was being driven by plaintiff's husband, was traveling east. The motorbus was traveling west. Plaintiff and her husband resided in Kansas City at the time, and were en route to St. Louis. The St. Charles road is paved with concrete. At the place where the collision occurred the pavement is 40 feet wide. There is a street car track on the south side of the pavement and another on the north side. On the occasion of the collision, the Ford automobile, in which plaintiff was riding, was traveling along the street car track, astraddle the north rail, on the south side of the pavement, following another automobile. It was raining, or had been raining, and the pavement was wet. The driver of the Ford automobile turned the automobile to the left in order to pass the other automobile. Upon so turning the automobile to the left, the right rear wheel thereof was caught against the north rail of the street car track, and the automobile was thus caused to skid across the highway to the north side of the pavement, whereupon it was struck by the west-bound motorbus, and thereby plaintiff sustained the injuries for which she sues.

The cause was tried to a jury. There was a verdict in favor of plaintiff against the defendant Red Line Service, Incorporated, for $5,000, and in favor of defendant St. Louis Public Service Company, and judgment was given accordingly. Defendant Red Line Service, Incorporated, appeals.

Appellant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. In view of this assignment it becomes necessary to set out the testimony respecting the accident in some detail.

Plaintiff testified as follows: "At the time the accident occurred we were going downhill and straddling the north rail of the track. The highway was wet. It had been raining, and was still drizzling. Just before the accident occurred we were traveling between twenty and twenty-five miles an hour. We had been following the automobile ahead of us about two blocks, and then my husband turned out and tried to pass that automobile. In turning out he only went about two feet, and he got his front wheels out and he tried to get over when the right rear wheel caught in the car track and then we turned around, skidded. I don't know whether we turned around more than once. I only know we skidded. When we turned out, I could see ahead of us. Before we turned out I could not see ahead because the other car obstructed our view. When we turned out I noticed the bus about 175 or 200 feet ahead of us, coming toward us. It looked like the bus was going the same speed as we were, about twenty or twenty-five miles an hour. After our car began to skid, it never stopped, but continued to move slowly toward the west. My husband was trying to regain control of the car. The car was traveling slowly as it moved westwardly. The right side of the rear of our automobile was struck by the bus. I don't know what happened to the automobile after it was struck. I don't remember anything after that. I was unconscious. I was knocked out of the automobile. The next thing I remember was being in a machine going to the hospital. I don't know how long I was unconscious. Our automobile was on the north side of the highway after it skidded and was slowly moving west. It was about three feet from the north edge of the pavement. I cannot tell the number of feet our machine traveled. It skidded until it got over to the north side of the pavement. After skidding we were facing west, and the right rear portion of our automobile was struck by the bus, and the right rear portion of our automobile at the time it was struck was within three feet of the north edge of the highway. When we started to turn out the right rear wheel of our automobile hung in the track and skidded along in the track about a foot and then the car swung out in a northeasterly direction. The front end swung out. It swung northeast. The front end swung clean north. When we came out of the track and started skidding to the other side the front end swung around to the north side. There was nothing between the bus and our automobile at the time I saw the bus 175 or 200 feet away. Our automobile was still moving at the time of the collision. Our car did not slow down any when we came from the south side over to the north side until we turned clear around."

Francis A. Burow, plaintiff's husband, who was driving the automobile in which plaintiff was riding at the time of the accident, testified that he was unconscious for five weeks following the accident, and that his memory as to what took place on the day of the accident was a blank.

C. W. Baker testified, for plaintiff, as follows: "I am now and have been for ten years superintendent of Lake Charles Cemetery. The travel on the St. Charles Road is very heavy day and night. The road leads to Kansas City and the west. United States highway 40 and United States highway 61 come in over that road from the west and north. I was at the scene of the accident shortly after it occurred. I had driven on this road where the accident occurred on numerous occasions in wet weather. On the occasions in wet weather, when I attempted to turn out the wheels of the automobile from between the tracks, I skidded a number of times. The concrete on the outside of either rail was level with the top of the rail, and on the inside it was from an inch and a half to two inches lower than the top of the rail immediately at the edge of the rail; then in the middle of the track between the two rails it was about the same height as the outside; so that it was sort of round in between the two rails, but an inch and a half or two inches lower than the top of the rail on the inside of the rail. There was about two miles and a half of that kind of construction. I got to the scene of the accident within a minute after it occurred. The bus that collided with Mr. Burow's car had left the highway and was down in the front part of the cemetery grounds about twenty feet from the highway. Mr. Burow had been placed in a car which was just starting to drive away from the scene. Mrs. Burow was supported by one or two parties on each side. She was hysterical and crying, and her face was bloody. Some one was holding her baby, and she was injured and bleeding quite badly. The Ford automobile was about the center of the road. It was west of the place where the accident occurred, about twenty or thirty feet. It was about twenty feet west of the point where it was struck by the bus. The rear end of the Ford was smashed. The wheels were smashed in and the body bent and the fender knocked off. The front end of the bus was damaged some. The Ford car was pointing southwest. Mr. Burow was in another automobile that picked him up off of the road. He was unconscious and was lying limp in the car. It was drizzling rain on this day. It had been raining quite a bit that afternoon. My recollection is that I have observed five accidents within two or three hundred feet of this particular place."

Several witnesses, who were passengers in the bus, testified, for plaintiff, that on the occasion of the accident the speed of the bus as it approached the point of collision was between 40 and 45 miles per hour, and that its speed was not checked before the collision.

Jerome Hunthausen, an expert witness produced by plaintiff, testified that, under the conditions existing at the time and place of the accident, the bus traveling at 25 to 30 miles per hour could have been stopped in 25 to 30 feet, that traveling at 35 miles per hour it could have been stopped in 30 to 35 feet, and traveling at 40 to 45 miles per hour it could have been stopped in approximately 40 feet.

Henry William Mustermann, produced as a witness on behalf of appellant, testified as follows: "I witnessed the collision on St. Charles Road between the Red Line bus and the Ford car. I was driving on the north side of the road in the rear of the bus. When I first noticed the bus I was a couple hundred yards behind it. The bus was traveling on the north side of the highway astraddle the inside rail of the street car track about three or four feet from the edge of the pavement. It continued in that position until the collision occurred. I was about 150 yards behind the bus when the collision occurred. I observed the car that came into collision with the bus. There were two cars straddling the inside rail on the south side of the road. That was the position of the car that later on collided with the bus. I saw the car turn out to pass the one ahead, and immediately it went spinning across the pavement and hit the bus, and the bus ran off the road, and, of course, when it hit the bus that shot it right straight back across the street almost the same way it came. It hit the telephone post, and I saw the lady fly out of it. I did not know who it was at the time. I just saw a form shoot out...