Dingman v. St. Louis Public Service Company, 21982.

• Decision Date: 06 September 1932
• Docket Number: No. 21982.,21982.
• Citation: 52 S.W.2d 584
• Parties: DINGMAN v. ST. LOUIS PUBLIC SERVICE COMPANY.
• Court: Missouri Court of Appeals

52 S.W.2d 584

DINGMAN v. ST. LOUIS PUBLIC SERVICE COMPANY.

No. 21982.

St. Louis Court of Appeals. Missouri.

September 6, 1932.

Rehearing Denied September 23, 1932.

Appeal from Circuit Court, City of St. Louis; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by John C. Dingman against the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

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

Wilton D. Chapman, T. Joseph Byrth, and B. T. Mattingly, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between his automobile, in which he was riding, and one of defendant's street cars. The collision occurred on Olive street, just west of Vandeventer avenue, in the city of St. Louis, on November 30, 1928. Plaintiff's automobile was parked on the north side of Olive street, and the collision occurred just after he had turned his automobile into the street and was proceeding west along the west-bound street car track. The street car was moving west on the west-bound track.

The petition alleges, by way of specifications of negligence, that defendant's servants in charge of said street car negligently drove said street car at an excessive rate of speed, and, after they saw or by the exercise of ordinary care would have seen said automobile in a position of danger of being struck by said street car, negligently drove said car upon and against plaintiff's automobile negligently failed to stop said street car, or check its speed, and negligently failed to give to plaintiff any signal or warning of the approach of said street car.

The petition also alleges negligence in the violation of the vigilant watch ordinance, but this specification was withdrawn from the consideration of the jury at the request of the defendant.

The cause was tried to a jury. There was a verdict and judgment for plaintiff for $4,000, and defendant appeals.

Plaintiff was thirty-eight years old at the time of the trial, which occurred two years after the accident in which he was injured. His automobile was an Oakland sedan, 1924 model, which plaintiff purchased a few months prior to the accident for $335. The accident occurred about 11:30 a. m. on November 30, 1928. At the time of his injury plaintiff was employed in the city of St. Louis by the American National Life Insurance Company, of Galveston, Tex., as assistant superintendent. He testified that, when he prepared to start his automobile from the curb where it was parked on the north side of Olive street, he observed the street car apparently stopped on the east side of Vandeventer avenue; that he started his automobile, got the engine to running, ran his windows up, glanced at his rear mirror, and looked back and saw the street car apparently about 150 or 175 feet away; that he then put his automobile into low gear, held out his left hand as a signal, and proceeded to pull out from the curb; that he got the front end of his automobile headed west in alignment with the street car track, had shifted into intermediate gear, and was preparing to shift into high gear, when there was a terrific crash; that the next thing he recalled he was standing in front of the street car; that he did not know how he got out of the automobile; that his automobile was jammed in between the street car and an Essex Sedan parked on the north side of the street; that when the crash came his automobile was knocked forward and sideways; that, when the street car stopped, the left front of his automobile was under the street car and the right back corner was kind of under the Essex; that it was necessary for the wrecking crew to jack up the Essex and set it over on the sidewalk; that he signaled before he started out from the curb, and that his automobile was struck when it was just about parallel to the parked car in front of him; that that was after he had signaled and turned his automobile out; that there was no intervening traffic between him and the street car; that there was no bell sounded; that the street car struck his automobile on the back end of the left side or corner; that, when the street car hit his automobile, it knocked his automobile sideways and forward, and threw the front end of the automobile under the street car; that he saw the street car standing east of Vandeventer avenue before he got in his automobile; that he was not going very fast at the time of the collision; that he was still in second gear; that he did not know how fast he was going, maybe ten or twelve miles, or something like that; that the back of his automobile had not passed the automobile, parked in front of him when the collision occurred; that his automobile was jammed into the parked automobile, a little bit of it underneath the automobile.

John A. Gillet testified, for plaintiff, that he saw the collision from the south side of the street; that when he first saw the street car it was leaving Vandeventer, and plaintiff was getting away from the curb, turning south from the curb, going west; that, in his judgment, the street car was about 150 feet from the automobile when plaintiff was turning it into the track; that he saw plaintiff pull out from the curb, and saw the street car hit him; that the street car did not check its speed or slow up any; that there was no bell sounded by the motorman; that there was no decrease in the speed of the street car that he could tell; that plaintiff signaled by putting his hand out before he started from the curb; that the two front wheels of plaintiff's automobile were on the street car track and the left rear wheel was half way between the two rails when the street car struck the automobile; that as a result of the collision the automobile was knocked over on another automobile parked at the curb; that after the collision plaintiff was complaining of being hurt; that it was a clear day, and the street was dry; that, in his opinion, the street car was traveling from Vandeventer up until it struck plaintiff's automobile at 15 or 20 miles per hour; that no bell was sounded by the motorman; and that the speed of the street car did not check at all.

John Langendorf testified, for plaintiff, that he was on the north side of Olive street about 80 or 100 feet west of Vandeventer, walking west on the sidewalk, when he saw plaintiff's automobile starting out from the curb; that, when he first saw the automobile starting out from the curb, the street car was just passing him and was about a hundred feet from the automobile; that the automobile was just pulling out and was about straightened out when the collision occurred; that when the automobile started to pull out the street car was about even with him; that he was about 100 feet away from the automobile; that the street car hit the automobile right at the rear on the left side, and pushed it and wedged it against another automobile that was parked at the curb; that the other automobile was almost tipped over; that it did not seem to him that the street car decreased its speed any until it struck the automobile; and that he did not hear any bell sounded.

Several witnesses, who were passengers on the street car, testified, for defendant, that, when the street car was about 15 to 20 feet away from plainti...