Clooney v. Wells

• Decision Date: 06 April 1923
• Docket Number: No. 23465.,23465.
• Citation: 252 S.W. 72
• Parties: CLOONEY v. WELLS.
• Court: Missouri Supreme Court

252 S.W. 72

CLOONEY v. WELLS.

No. 23465.

Supreme Court of Missouri, Division No. 1.

April 6, 1923.

Rehearing Denied June 8, 1923.

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

Action by Michael A. Mooney against Rolla Wells, receiver. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Nortoni, Moore, Breaker & Green, all of St. Louis, for appellant.

Kelley, Starke & Moser, of St. Louis, for respondent.

GRAVES, P. J.

Action for personal injuries. The defendant Rolla Wells is and was the receiver of the United Railways Company of St. Louis, and was operating the railway system of such company. Plaintiff was injured in a collision between a street car (operated by defendant) and the automobile in which he was riding at the time. The negligence charged is thus stated in the petition:

"That defendant negligently operated said street car at a high and dangerous rate of speed, to wit, at more than 15 miles per hour", that defendant negligently failed and omitted to sound a timely and sufficient warning of the approach of said car.

"Plaintiff further states that at the time said street car was approaching the automobile in which plaintiff was riding defendant saw, or by the exercise of ordinary care would have seen, plaintiff and said automobile in a position of imminent peril of being struck by said street car, in time thereafter, by the exercise of ordinary care, with the means at hand and with reasonable safety to the passengers and other occupants of said street car, to have either stopped or slackened the speed of said car so as to avoid striking said automobile and injuring plaintiff, but that defendant negligently failed to do so."

From the foregoing it will be observed that the petition counts upon (1) simple common-law negligence in two respects, and (2) that form of negligence denominated as the last chance rule, or humanitarian rule. As to the common-law negligence it is first said that the car was run at a high and dangerous rate of speed, and, secondly, that there was a failure to give notice of the approach of the car. The answer, after admitting the receivership, and that Wells was operating the railway, proceeds as follows: (1) A general denial, and (2) plea of contributory negligence stated in three slightly different paragraphs. Reply was a general denial. The case for plaintiff was submitted by an instruction on negligent speed solely. So the humanitarian rule, and failure to warn, drop out of the case.

Upon trial before a jury plaintiff had a verdict for $13,500 upon which judgment was duly entered, and from this judgment defendant has appealed. Alleged errors and the pertinent facts are left to the opinion.

I. The situs of the accident and incident facts become material, as it is urged that plaintiff made no case for the jury. The accident occurred at about 6:30 to 7 o'clock on January 8, 1920. A snowstorm was in progress at the time, making it difficult to see objects at any great distance. The exact directions of the public roads are not clearly given, but it will suffice to say that Natural Bridge road runs practically east and west. From the south comes Kienlen avenue, which terminates upon its entry into Natural Bridge road. Shortly east of the juncture of Kienlen avenue and Natural Bridge road, there runs, from said last road, Jennings road toward the north. So with a slight jog east at the intersection, Kienlen avenue and Jennings road form a continuous road, running practically north and south. This intersection is just west of the west line of the city of St. Louis, in St. Louis county. The railway tracks from Ferguson to St. Louis cross the intersection of these three roads on an angle; that is to say, the tracks come from the northwest, and run toward the southeast. At the point was a settlement known as Pine Lawn. Plaintiff had a store on Kienlen avenue, south and west of defendant's railway tracks. On the day of the accident he' started to Pine Lawn to deliver some merchandise. About a thousand feet from this crossing one Kaemmerer was passing in his automobile, and seeing the plaintiff asked him to ride in his car. The two were strangers, and the offer was a kindly act of Kaemmerer, no doubt prompted by the then raging snowstorm. At any rate, plaintiff took a place in the rear seat of the curtained car. Kaemmerer was oil the front seat and driving. The car proceeded north to the intersection at Natural Bridge road, and then veered to the east over defendant's tracks for the purpose of entering Jennings road running northward. In the act of crossing, the rear of Kaemmerer's car was struck by the defendant's street car coming from the northwest and going to the city of St. Louis. In the collision the plaintiff was very seriously injured. The foregoing are the general facts. The particular facts we leave to the opinion.

II. It is insisted that the demurrer to the evidence should have been given. If so, then it must either appear (1) that defendant was guilty of no negligence, or (2) that plaintiff's contributory negligence barred his recovery. Singular to say, the negligence charged to defendant, i. e. negligent rate of speed, under the circumstances shown, is not controverted in a brief containing twelve much elaborated points and authorities. What defendant refuses to discuss, upon such vital issue, we may take as a conceded fact. Especially is this true where the weather conditions (a blinding snow), the thickly populated community (shown by the evidence and the photographs), the amount of automobile travel at the crossing, all bespeak the utmost caution of defendant's agents in approaching the crossing under the shown circumstances: But we need not discuss this, or go into further details, because the only matter relied' upon in the brief is the contributory negligence of plaintiff. The conduct of the case here is a concession of defendant's negligence, as to the rate of speed.

III. The alleged contributory negligence of the plaintiff is predicated upon some answers made by plaintiff during his cross-examination, in this: That the plaintiff said that Ms "mind wasn't on the street car. I wasn't running the machine. I wasn't interested in the street car. My mind was on my order where I was going. I had no business to be"—meaning interested in the street car. The place referred to in these answers is material. The witness suffered from loss of memory. Both he and Dr. Tiernan so testified. Among his many injuries he suffered a severe concussion of the brain, and fracture of the skull. So severe was this that Dr. Tiernan says for practically two weeks he was almost wholly unconscious, and for a month was unconscious most of the time. After leaving the hospital (he was there 4 or 5 weeks) and upon his arrival home, he went to his store. This was some time after reaching home. At the store for a long time he could not recall the prices of his goods. He was in the grocery and meat market business. He says that the last thing that he can recall was seeing the little street railway station as they passed it. This would make him some 20 feet or thereabout south of Natural Bridge road. He testified that he cannot recall anything after they passed this point. Other evidence, that of his physician, strengthens the view that plaintiff stated the facts truthfully. The answers given above must therefore have reference to the things before the passage of this station house. So that even if there was a duty upon him (a mere passenger) to look and listen, these answers, having reference to a place far distant from the actual crossing, are not so damaging to plaintiff's case. It must be borne in mind that from the point named the car had to go some distance to reach Natural Bridge road, and then jog east and go to the center of the road before reaching the tracks. It should also be remembered that buildings obstructed the view of the railway line, until the automobile was practically in Natural. Bridge road. He said that they were going slow, and that Kaemmerer appeared to be a careful driver. With this explanation of his evidence, we will take the further facts. Kaemmerer said that his automobile was a closed top Maxwell passenger car; that the curtains were up, but that there were isinglass windows in the curtains through which you could see. But this testimony as well as that of others tends to show that the snowstorm was such that you could not see a headlight of a street car more than 100 feet. The range of the average evidence is even less than 100 feet. Kaemmerer says that he slowed down his machine to four or five miles per hour, and looked. La both directions before undertaking to cross; that when his car was on the first rail he saw the light of the street car when 75 feet away; that he put on the gas and had gotten so far over that the street car struck the rear portion of the machine where plaintiff was seated; that the slippery street made his car skid some, or otherwise ha would have cleared the track.. Another in. stant would have put his machine in the clear. By the evidence the street car was running 15 to 20 miles per hour at this crossing, and even after the collision ran far beyond the passenger station, where it was supposed to stop. This, too, in the face of the fact that there were a number of passengers there to take the car. To say...