Dempsey v. City Light & Traction Co.

Citation240 S.W. 1093
Decision Date01 May 1922
Docket NumberNo. 14185.,14185.
CourtCourt of Appeal of Missouri (US)
PartiesDEMPSEY v. CITY LIGHT & TRACTION CO.

Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.

"Not to be officially published."

Action by A. B. Dempsey against the City Light & Traction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

George F. Langan, of Sedalia, for appellant.

M. A. McGruder and W. D. Steele, both of Sedalia, for respondent.

BLAND, J.

This is an action for damages to an automobile and to the person of the driver and owner thereof. There was a verdict and judgment in favor of plaintiff in the sum of $250 for damages to the automobile and $250 on account of persohal injuries suffered by him. The petition alleges that defendant was negligent in running its car at an unlawful and negligent rate of speed and in failing to sound a warning of the approach of the car.

Defendant's only point is that its instruction in the nature of a demurrer to the evidence should have been given. The facts show that on the 16th day of August, 1919, about 10:30 a. in., plaintiff was driving his automobile east on Seventh street in the city of Sedalia, Mo.; that Seventh street runs east and west, and Ohio street, 6.n intersecting street, runs north and south; that defendant maintained street railway tracks upon Ohio street.

Plaintiff testified that he was driving on the right-hand side, or south, of the center line of Seventh street; that when he reached Ohio street he first looked north, knowing that if he should encounter any automobiles upon Ohio street they would be coming from the north on the west side of that street; that he was not able to see north until he reached the property line of Ohio street; that he continued to look north until he reached a point four or five feet from the railroad track, at which time he looked south. He had not looked south prior to this time on account of looking north, and he could not have looked south prior to his reaching the Property line of Ohio street by reason of the fact that there was an obstruction in the form of a building at the southwest corner of the two streets. At the time he first looked south he was going at the rate of about 8 miles an hour. At that time he saw one of defendant's street cars approaching him at a rate of speed from 20 to 25 miles per hour and about 20 or 25 feet away. No alarm of any kind was sounded by the operators of the street car.

Seventh street at the point in question is 40 feet in width from property line to property line. Plaintiff did not introduce any evidence as to the location of the street car tracks in reference to the property lines of the street, but defendant's witness Bennett testified that he saw plaintiff coming into Ohio street, and at that time plaintiff was 25 or 30 feet from the street car tracks. This being the only evidence in the record as to the space over which plaintiff traversed during which he could have seen the approach of the street car had he looked, we must assume this evidence to be true. When plaintiff first discovered the presence of the street car, he was going at such a rate of speed that he was unable to stop, but proceeded upon the track, and his car was struck in its center by the street car,...

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11 cases
  • Dobson v. St. L.-S.F. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...of his own senses for his protection. Nichols v. Railway, 250 S.W. 627, l.c. 628; Epstein v. Wells, 284 S.W. 845, l.c. 847; Dempsey v. Traction Co., 240 S.W. 1093, l.c. 1094; Ross v. Wells, 255 S.W. 952, l.c. 954. (5) The degree of care required depends upon the circumstances and the danger......
  • Herrell v. Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...Payne (Mo. App.), 235 S.W. 467; Aldridge v. Railway (Mo. App.), 256 S.W. 93; Dickey v. Railway (Mo. App.), 251 S.W. 112; Dempsey v. Trac. Co. (Mo. App.), 240 S.W. 1093. The automobile was owned by plaintiff and was being driven by his nineteen-year-old son; and the negligence of the driver ......
  • Herrell v. St. Louis-San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • March 29, 1929
    ...Payne (Mo. App.), 235 S.W. 467; Aldridge v. Railway (Mo. App.), 256 S.W. 93; Dickey v. Railway (Mo. App.), 251 S.W. 112; Dempsey v. Trac. Co. (Mo. App.), 240 S.W. 1093. automobile was owned by plaintiff and was being driven by his nineteen-year-old son; and the negligence of the driver is i......
  • Dobson v. St. Louis-San Francisco Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ......507; Nichols v. Railroad, . 250 S.W. 627, 628; Dempsey v. Traction Co., 256 S.W. 155, 156; Aldridge v. Railroad, 256 S.W. 93, ... train at the Weller Street crossing in the city of. Springfield, Missouri, on December 14, 1926, at about 7:30 A. M. ......
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