Driscoll v. Wells, 28451.

• Decision Date: 07 April 1930
• Docket Number: No. 28451.,28451.
• Citation: 29 S.W.2d 50
• Parties: DRISCOLL v. WELLS.
• Court: Missouri Supreme Court

29 S.W.2d 50

DRISCOLL v. WELLS.

No. 28451.

Supreme Court of Missouri, Division No. 2.

April 7, 1930.

Motion for Rehearing Overruled June 11, 1930.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Daniel Driscoll against Rolla Wells, receiver of the United Railways Company of St. Louis, and others. From the judgment, the named defendant appeals.

Reversed.

T. E. Francis and W. H. Woodward, both of St. Louis, for appellant.

John A. Witthaus, of St. Louis, for respondent.

BLAIR, P. J.

This is an action for personal injuries against Rolla Wells, as receiver of the United Railways Company, and Ernest R. Konze and Ernest H. Konze. At the conclusion of plaintiff's case, the trial court gave an instruction in the nature of a demurrer to the evidence as to defendant Ernest H. Konze. The jury found for plaintiff against the remaining defendants and assessed his damages at the sum of $12,000. From the judgment entered on such verdict, Receiver Wells alone appealed.

The suit was originally instituted against the two defendants Konze. Later an amended petition was filed making the receiver a party defendant. Primary negligence was charged against defendants Konze, but recovery was sought against the receiver solely under the humanitarian rule. The trial occurred in January, 1927.

The evidence offered by respondent tended to show the following facts: Respondent was a sergeant of police. At 11:30 o'clock p. m. on the night of March 21, 1923, he left the police station at the southeast corner of Grand and Magnolia avenues, in the city of St. Louis, to board a south-bound street car. Double tracks were laid in Grand avenue, a north and south street. The west track was used by south-bound cars. The regular stopping place for such cars was thirty or forty feet north of the north curb line of Magnolia avenue. The street intersection was well lighted. Respondent proceeded north from the police station to the northeast corner of the street intersection and then walked west into Grand avenue and north toward the stopping place for street cars and there stood facing an approaching south-bound street car. When the street car was about one hundred feet away, respondent saw an automobile moving out from behind it. The automobile was driven by defendant Ernest R. Konze. When the street car and the automobile were from fifty to seventy-five feet from respondent, he started signaling for them to stop. He was standing far enough from the track to be clear of the moving street car. The automobile was veering closer to the street car tracks as both moved south. As neither slowed up, he waved his arms frantically and "hollered": "For God's sake pull out." The automobile passed the front end of the street car when the latter was from twenty-five to thirty feet from the respondent.

The automobile struck respondent and knocked him down beside the track, while the street car was an automobile length away. After being knocked down, he was struck on the left hip by some heavy piece of iron or steel on the front truck of the street car. He was severely injured. The street car stopped about twenty feet south of the regular stopping place. Respondent was then found under the car just beneath the middle door at the side and lying across the west rail. The wheels of the front truck had not passed over him and the rear wheels had not yet reached him.

It is the contention of appellant that the street car had stopped to permit respondent to board it; that the Konze automobile struck him and knocked him down under the standing street car where he was found. It is respondent's theory that he was knocked down by the automobile alongside the track at such a distance in front of the street car that the motorman, in the exercise of the requisite care under the conditions existing and by the use of the appliances at hand, could have stopped the street car before it struck respondent, without injury to the street car or its passengers.

We think respondent failed to make a case for the jury against appellant receiver under the humanitarian rule. The only allegation of negligence under the humanitarian rule, which respondent sought...