D'Wolf v. Stix-Baer & Fuller Dry Goods Co.

• Decision Date: 02 June 1925
• Docket Number: No. 18964.,18964.
• Citation: 273 S.W. 172
• Parties: D'WOLF v. STIX-BAER & FULLER DRY GOODS CO.
• Court: Missouri Court of Appeals

273 S.W. 172

D'WOLF v. STIX-BAER & FULLER DRY GOODS CO.

No. 18964.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

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

"Not to be officially published."

Action by Nelson S. D'Wolf against the Stix-Baer & Fuller Dry Goods Company.

Bryan, Williams & Cave, of St. Louis, for appellant.

Case & Miller, David W. Voyles, and George L. Stemmler, all of St. Louis, for respondent.

DAVIS, C.

This is an action for damages to plaintiff's automobile, caused by a collision between it and a motortruck driven by a servant of defendant. Plaintiff obtained a verdict in the circuit court for $656.08; defendant appealing from the judgment entered thereon.

The collision occurred at the intersection of Channing avenue and Locust street in the city of St. Louis, on December 8, 1916, at about 5:45 p. m. The front end of plaintiff's automobile was badly damaged, the radiator was broken, both headlights demolished, the front axle bent, the hood mashed nearly flat, and a fender cracked off. Plaintiff paid $656.08 for repairs, a fair and reasonable charge. At the time of the accident, an ordinance of the city of St. Louis was in force prohibiting motor vehicles from traveling at a greater rate of speed than 8 miles an hour in the business portion of the city, or more than 10 miles an hour in other portions. An ordinance gave vehicles going in an easterly and westerly direction the right of way over vehicles going in a northerly and southerly direction. Defendant's truck was proceeding in a southerly direction along Charming avenue, and plaintiff's motorcar was traveling westwardly on Locust street. Another ordinance in force required all vehicles to keep as near the right-hand curb as possible. These were the undisputed facts in the case.

Plaintiff's evidence tended to show that just prior to the collision he was driving westwardly on Locust street; that he heard the approach of defendant's motortruck before he arrived at the east curb line of Channing avenue. We here deem it necessary to set out in hæc verba portions of the testimony as shown by the record. Plaintiff testified:

"I saw the truck when it was 15 or 20 feet north of the intersection' of Channing and Locust—north of the curb line of Locust. I was traveling about 4 or 5 miles an hour as I reached the east curb line of Channing avenue. When I first saw the automobile truck north of Locust street, my front wheels were just about even with the east curb. I came to a dead stop 5 or 10 feet west of the east curb line of Channing avenue. The automobile truck was practically astride of the center line of Channing, a little further to the east than to the west. I brought my car to a stop, possibly 5 feet east of the center line of Channing. The truck was coming south `and the driver of the truck was not looking where he was going. He did not diminish his speed at all. He made a motion like he was going to swerve to the left, and he swerved a little to the left and then the other way. As he swerved to the right, he caught the right front spring of my car and carried me around the corner, around the light, possibly 100 feet. Before the collison, I saw the driver in the cab of the truck. There were one or two men on the front seat with him. It was a rainy day. It was after sundown and dark. My headlights were burning. Locust street is 40, and Channing avenue 35 feet wide. I greatly diminished my speed in approaching Channing avenue. I started to diminish the speed 25 feet from Channing avenue."

On cross-examination, plaintiff testified:

"I was possibly right abreast of the curb when I saw it. My car struck the truck near the center and scraped along until it hung on something just in front of the rear wheel. The front of my car caught. The truck was going 15 or 20 miles an hour, and the driver was talking to a man on the seat beside him, and was looking the other way. I could see very plainly that the driver was not looking toward me, but was looking west, and was not paying any attention to any traffic coming in my direction. The truck was heavily loaded. It would have taken the driver of the truck a distance of 30 or 40 feet to have stopped the truck at the rate of speed at which the truck was traveling. I was on a line running east and west, which was not more than 20 feet south of the truck when I first saw it. It was 15 or 20 feet north of me."

Plaintiff's two sons were in the car with him. One testified:

"Our automobile was between 5 and 10 feet east of the center line of Channing avenue when it stopped. When I first saw the truck; it was a little bit east of the center line of Channing avenue."

The other son testified:

"My father's car stopped about halfway between the center line of Channing avenue."

Plaintiff further testified:

"The first time I saw the truck it was 15 or 20 feet north of the curb line of Locust street, and a little east of the middle of Claiming avenue. I judge the left wheels of the truck were about 15 feet from the east curb line of Channing avenue. I could have stopped the car at the rate I was going almost instantly, without skidding, in possibly half the length of the car. I think I could have stopped it within 2 feet when I approached the east curb line of Channing avenue."

The driver of the truck, witness for defendant, testified, in substance, that he stopped at the intersection of Channing avenue and Locust street to permit traffic to pass east and west; that after the traffic passed, he started to cross Locust street and noticed an automobile halfway between Leonard and Channing, coming west at about 30 miles an hour, which ran into and struck the truck about 10 feet north of the south curb of Locust street; that the driver on the truck was on the right side, and if he had been talking to a fellow passenger he would have been looking to the east.

I. Defendant thinks the trial court erred in refusing to direct a verdict in its behalf. This contention is based on the assumption that plaintiff's evidence shows unequivocally that he saw the whole situation relative to the inattention of the driver of the truck, when he reached the east curb of Channing avenue, at which place he could have stopped within 2 feet.

We have purposely set forth the evidence at some length. Having carefully considered it, we are unable to say that it is, without doubt, subject to the interpretation defendant gives it. It is true the evidence shows with certainty that when plaintiff first saw the truck it was astride the center of Channing avenue, with the left wheels about 15 feet from the east curb. This situation would not convict plaintiff of negligence, as a matter of law, for he was not then in a position of danger, and did not, according to his evidence, proceed to such a position, provided the truck kept to its course. We take it that plaintiff could then assume that the truck driver would use his senses, observe the street and surroundings, confine his course to the line of travel on which he was proceeding, and refrain from a negligent act.

Says the defendant, however, it was demonstrated with certainty that plaintiff, at the moment of reaching the east curb, when he could have stopped his car in 2 feet, saw the truck coming 15 or 20 feet north of Locust street, at a speed in excess of 15 miles an hour; that he saw the driver did not intend to slacken speed or stop and that the truck could not have been stopped in less than 30 or 40 feet; that he also saw the driver was not looking toward him but was looking in the opposite direction, engaged in conversation with some one riding on the same seat with him.

We do not think the evidence unequivocally establishes the contention. The evidence does not demonstrate with certainty whether plaintiff saw the situation presented by defendant when he reached the east curb of Channing avenue, or whether he saw the situation when he stopped his car, as he states, 5 or 10 feet west of the east curb line of Channing avenue, or, as he further stated, possibly 5 feet east of the center line of Channing avenue. Without rehearsing the evidence, which may be read as set forth, we think that, while it may be interpreted as tending to show that plaintiff, when he first saw the truck, saw the chauffeur was inattentive to his surroundings, it may also be interpreted as tending to show that plaintiff did not observe such inattention until he came to a dead stop. In view of the rule that the plaintiff is entitled to the most...