Clark v. Wells

• Decision Date: 05 January 1932
• Docket Number: No. 21696.,21696.
• Parties: CLARK v. WELLS et al.
• Court: Missouri Court of Appeals

44 S.W.2d 863

CLARK v. WELLS et al.

No. 21696.

St. Louis Court of Appeals. Missouri.

January 5, 1932.

Rehearing Denied January 12, 1932.

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

"Not to be officially published."

Action by Lee Bert Clark against Rolla Wells, receiver of the United Railways Company of St. Louis, and another, defendants. From judgment for plaintiff, defendants appeal.

Reversed and remanded.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellants.

B. Sherman Landau, of St. Louis, for respondent.

BECKER, J.

Plaintiff, in his action for damages for personal injuries alleged to have been sustained as the result of a collision between a motorcycle which plaintiff was riding and one of the defendants' street cars, recovered judgment for $2,000, and defendants in due course bring this appeal.

Plaintiff, in his petition, set up three allegations of primary negligence as well as seeking to recover under the humanitarian doctrine, but abandoned the charges of primary negligence, and submitted his case to the jury on the last chance doctrine alone. Error is here assigned in the giving of said instruction.

Plaintiff's petition alleges that on the afternoon of June 17, 1926, he was riding his motorcycle eastwardly on Sullivan avenue, an east and west street in the city of St. Louis; that Sullivan avenue had been freshly oiled or treated with "Tarvia," which made the roadway wet and slippery; that this condition obtained at and near the intersection of Sullivan and Vandeventer avenues, the latter street being a north and south street, and on which street the defendants have a double set of street car tracks for use of its cars; that, as plaintiff approached Vandeventer avenue, and was distant some 50 feet from the west rail of the south-bound street car tracks, he observed a south-bound Vandeventer street car a few feet north of the north curb line of Sullivan avenue, and he instantly applied his brakes; that, because of the slippery condition of the street, the application of the brakes did not have the usual retarding effect, but, instead, caused the rear wheel of the motorcycle to lock, and the motorcycle skidded forward directly into the moving street car, striking same at or about the center of the steps of the front door thereof; "that immediately thereafter, and while said motorcycle and said street car were still in contact, the motorman of said street car carelessly and negligently, suddenly turned the controller of said street car and greatly increased the speed thereof, causing the motorcycle which plaintiff was riding, to be overturned and dragged by said street car, and causing plaintiff to be violently thrown and hurled from his said motorcycle underneath the street car, and causing plaintiff to sustain injuries hereinafter set forth."

The petition then sets out the following assignments of negligence: First, a violation of the vigilant watch ordinance of the city of St. Louis, Mo.; second, excessive speed; third, "that the said motorman carelessly and negligently increased the speed of said street car while the motorcycle of plaintiff was in contact with the front door of said street car, and while the plaintiff was in a position of extreme danger and peril, thereby directly causing plaintiff's motorcycle to be overturned, and causing plaintiff to be violently thrown underneath the wheels of the moving street car"; fourth, a violation of the humanitarian doctrine to the effect that the motorman saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger, and oblivious of said peril and danger and unable to extricate himself therefrom, in time to have stopped the street car with the appliances at hand and with safety to the passengers of said street car, "and could thereby have avoided this collision and injury to plaintiff, but that said motorman carelessly and negligently failed so to do."

The answer was a general denial and the further plea of contributory negligence on the part of the plaintiff.

Plaintiff's own testimony was to the effect that, when he applied the brakes of the motorcycle, the rear wheel locked, and his motorcycle skidded forward until it came into collision with defendants' street car, at a point about the center of the front door thereof.

"Q. Were you thrown off your motorcycle or injured at the time of the impact? A. No, sir.

"Q. What was your position on the motorcycle? A. I was sitting straight up.

"Q. Then what did you do, if anything? A. Well, I was trying to lean the motorcycle away from the street car, but I didn't have time.

"Q. What happened? A. I saw the motorman make a step toward the door and look through the door, and he went back and gave her more speed.

"Q. Then what happened? A. It shoved the motorcycle away; it threw me under the street car on the rail.

"Q. What portion of the street car came in contact with the motorcycle? A. That large part just behind the front door.

"Q. And what did it do to the motorcycle * * *? A. It threw the motorcycle to my right.

"Q. And what happened to you? A. It threw me under the street car.

"Q. What part of the street car did you fall under? A. Right behind the front trucks."

And we quote the following from plaintiff's cross-examination:

"Q. You came down there on your motorcycle and...