Epstein v. Wells

Citation284 S.W. 845
Decision Date04 May 1926
Docket NumberNo. 19183.,19183.
PartiesEPSTEIN v. WELLS.
CourtCourt of Appeal of Missouri (US)

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

Action by Herman Epstein against Rolla Wells, Receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Chas. W. Bates, T. E. Francis and John F. Evans, all of St. Louis, for appellant.

Earl G. Broeg and Wm. J. Jones, both of St. Louis, for respondent.

DAUES, P. J.

This is an action for personal injuries and property damages sustained by plaintiff, in a collision between plaintiff's truck and one of defendant's street cars at the intersection of Broadway and La Salle streets, in the city of St. Louis, on February 24, 1921. There was a verdict and judgment in favor of plaintiff for $1,-200, from which defendant has appealed.

The trial petition contains several assignments of negligence, including excessive speed and failure to warn. Then the petition contains the following:

"That they failed to keep a watch ahead for vehicles and persons, and particularly for plaintiff and his motor truck, moving east and west on La Salle street and over and across said intersection, and failed to control or stop said car and thus prevent it from running into and against plaintiff's truck, after they saw, or by the exercise of ordinary care could have seen, plaintiff's motor truck and plaintiff in a position of danger."

And certain city ordinance violations were pleaded, relating to warnings at street crossings, yielding right of way, and exceeding the 10-mile per hour restriction, though these ordinances are not specifically set out.

The answer is a general denial, and alleges contributory negligence, in that plaintiff drove his truck immediately in front of the street car which he saw and heard, or by the exercise of ordinary care could have seen and heard, in time to have remained away from the street railway tracks and thus have avoided the collision. The reply is a general denial.

Plaintiff, testifying in his own behalf, stated that, in broad daylight, on the day of the accident, he was driving a small empty truck east on La Salle street, intending to turn north on Broadway. Broadway is a north and south street and La Salle is an east and west, street, and at this point on Broadway a park is located east of the railway tracks on Broadway, with a space of only 4 or 5 feet between' the park and the east rail of the north-bound track. La Sane street does not extend through the park, so that in driving east on La Salle street at this intersection plaintiff was obliged to turn north or south on Broadway. La Salle street is about 25 to 30 feet wide, and plaintiff says that, as he was driving on this street, he was about 3 or 4 feet from the south side of the street, and that on the south curb near Broadway he encountered a standing wagon ; that at the northwest corner of Broadway and La Salle several people were standing at a regular car stop place on the northwest corner of Broadway and La Salle. He said he could not say that these people were waiting for the street car ; it looked as though they were.

Plaintiff testified further that when he first saw the street car he was about 5 feet from the west rail, the one the car was running on, but later he said he was about at the curb of Broadway, which was about 15 or 20 feet from the nearest rail to him, and that the street car was about 50 to 60 feet to the north, running southwardly. He said he was then traveling about 8 or 10 miles an hour, proceeding to cross the track, and that the front part of the street car struck the left hind wheel of his truck, causing injury to plaintiff and damage to the truck. He said that when the injury occurred the motorman stepped off of the car and said to him :

"I am sorry I couldn't stop the car, them rails is too slippery; it was right after the rain, and I couldn't stop it."

Plaintiff admitted that he did not know how fast, in miles per hour, the ordinance permitted street cars to run at that point ; nor did he say that he relied upon the street car running at the lawful rate while attempting to cross the tracks. Plaintiff further testified that he did not know or estimate the speed of the street car.

On cross-examination, plaintiff testified again that he was driving his truck about 8 or 10 miles an hour as he came east on La Salle street near Broadway, but that he slowed down at the southwest corner of these streets and looked for passing traffic, and that he then saw the car coming ; that at that point he could have stopped his truck almost instantaneously, but he started to cross the street at about 10 or 12 miles per hour.

Another witness, Fred Lear, testified for plaintiff that at the time of the accident he (witness) was driving his team east on La Salle street, about to enter into Broadway; that he noticed plaintiff driving his truck on the south side of La Salle street, passing right in front of his horses ; that when he first saw the street car it was coming south on Broadway in about a line of the north of La Salle street ; that he noticed that the motorman was not looking ahead; that he noticed that plaintiff had his hand out, giving a signal to turn, and that he shouted to plaintiff to look out ; that after the impact he noticed the motorman turn his head to see what was in front of him, and that he then threw the controller off. As to the speed of the street car, this witness said that when he first saw same it was traveling about 3 or 4 miles an hour, but that it suddenly speeded up until at the time it hit plaintiff it was traveling 8 or 10 miles an hour. When the car was actually stopped, it had proceeded only about a car length from the place where it struck the truck.

Plaintiff introduced testimony as to the nature and extent of the damages, about which no point is made ; he also introduced and read into evidence the vigilant watch ordinance of the city of St. Louis, and the speed ordinance limiting street cars to 10 miles an hour at this point. Expert testimony was also introduced to show that a street car running 10 miles an hour at this point could be stopped within 20 to 22 feet, and traveling 15 miles an hour could be stopped within 35 feet.

The defendant produced the motorman of the car, who testified that as he approached La Salle street he saw plaintiff's truck coming east "pretty fast" ; that when it came into Broadway the truck turned south in front of the car when he was only 10 or 15 feet away ; that he applied the brakes, but could not stop the street car in time to avoid the accident ; that when he saw plaintiff's truck, he sounded the gong before the impact ; that his car was traveling from 7 to 8 miles an hour, and that he stopped same within 35 to 40 feet after striking the truck ; that he stopped the car as quickly as he could.

The conductor of the car testified that his attention was attracted by the gong of the street car ; that he looked up and saw the truck close to the front of the street car, almost upon it. He also said that the street car was traveling about 8 or 10 miles an hour.

Plaintiff submitted his case on two instructions, being Nos. 4 and 5. Instruction No. 4 is on the issues of the case, and instruction No. 5 on the measure of...

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13 cases
  • Dobson v. St. L.-S.F. Ry. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • September 28, 1928
    ...proper signals will be given, he must make use 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 require......
  • Smith v. Wells, 28495.
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...Cox, 10 S.W. (2d) 940; Sullivan v. Railroad, 317 Mo. 996; Cox v. Railroad, 9 S.W. (2d) 96; Threadgill v. Rys. Co., 279 Mo. 466; Epstein v. Wells, 284 S.W. 845; Zlotnikoff v. Wells, 295 S.W. 129; Moore v. Ry. Co., 176 Mo. 544; Spaunhorst v. Rys. Co., 238 S.W. 820; Evans v. Railroad Co., 289 ......
  • Smith v. Wells
    • United States
    • United States State Supreme Court of Missouri
    • October 14, 1930
    ...v. Cox, 10 S.W.2d 940; Sullivan v. Railroad, 317 Mo. 996; Cox v. Railroad, 9 S.W.2d 96; Threadgill v. Rys. Co., 279 Mo. 466; Epstein v. Wells, 284 S.W. 845; Zlotnikoff v. Wells, 295 S.W. 129; Moore v. Co., 176 Mo. 544; Spaunhorst v. Rys. Co., 238 S.W. 820; Evans v. Railroad Co., 289 Mo. 493......
  • McGowan v. Wells
    • United States
    • United States State Supreme Court of Missouri
    • February 3, 1930
    ...... . .          (1). Under the respondent's own evidence he was clearly guilty. of contributory negligence as a matter of law, and the trial. court erred in not so instructing the jury. Gubernick v. Railways Co., 217 S.W. 35; Keele v. Railways. Co., 238 Mo. 62; Epstein v. Wells, 284 S.W. 845; Laun v. Railroad, 216 Mo. 580; State ex. rel. v. Reynolds, 233 S.W. 222; Boyd v. Railway. Co., 105 Mo. 371; Mockowik v. Railroad, 196 Mo. 550; Huggart v. Railroad, 134 Mo. 679; Kelsay v. Railway Co., 129 Mo. 374; Reno v. Railroad, 180. Mo. 469; Stotler ......
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