Flach v. Ball

• Citation: 240 S.W. 465,209 Mo. App. 389
• Decision Date: 04 April 1922
• Docket Number: No. 16988.,16988.
• Parties: FLACH v. BALL.
• Court: Court of Appeal of Missouri (US)

240 S.W. 465

209 Mo. App. 389

FLACH v. BALL.

No. 16988.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Marie Flach against Philip D. C. Ball, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

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

George E. Mix, Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, all of St. Louis, for respondent.

BRUERE, C.

This suit was brought by the plaintiff to recover damages for personal injuries sustained by her, alleged to have been negligently caused by being struck by defendant's automobile, while she was walking across Hamilton avenue, in the city of St. Louis, near its intersection with the Hodiamont street car tracks.

The petition charged negligence in operating said automobile in violation of the ordinances of the city of St. Louis in this: (al Operating said automobile at a rate of speed in excess of 10 miles per hour; (b) failure to give any signal by bell, horn, or otherwise to warn persons approaching or crossing over the intersection or crossing on Hamilton avenue, of the approach of said automobile; and (c) failure to stop such automobile and remain at the rear of a south-bound Hamilton avenue street car, which was at the time standing to take on and let off passengers on the north side of the Hodiamont street car tracks.

The petition further charged the defendant with failure to exercise due care to keep a lookout and a vigilant watch for persons upon said street approaching the aforesaid intersection thereof, and failure to stop the automobile or slacken its speed or change its course after he saw, or by the exercise of due care could have seen, the plaintiff crossing the street and in dangerous proximity to said automobile.

The answer was a general denial, coupled with a plea of contributory negligence on the part of plaintiff as follows:

(1) Failure, before crossing Hamilton avenue, to look and listen for approaching vehicles.

(2) Running in front of a south-bound Hamilton avenue street car when her view was so obstructed that she could not see whether any vehicle was approaching into that portion of Hamilton avenue to the west of said car, and when the drivers of any such vehicle could not see her approaching, and running immediately in front of the defendant's automobile, and so close thereto that it was impossible to stop said automobile before striking her.

The reply put in issue the new matter set up in the answer.

At a trial a jury awarded plaintiff a verdict for $4,000. From a judgment on that verdict, defendant appeals.

The facts disclosed by the evidence are: Hamilton avenue and the Hodiamont tracks intersect each other at right angles. The Hodiamont street car line runs east and west on a private right of way, and Hamilton avenue is a public street running north and south. Two street car tracks were maintained on Hamilton avenue, and also on the right of way of the Hodiamont line. The eastern track, on Hamilton avenue, was used for north-bound, and the western track for south-bound, cars. The southern track on the Hodiamont line was used for east-bound and the northern track for west-bound cars. The north-hound cars stopped to take on and let off passengers on the south side and the south-bound cars on the north side of the Hodiamont tracks, the east-bound cars on the west side and the west-bound cars on the east side of the Hamilton avenue tracks. Hamilton avenue, at the point of the accident, is 36 feet wide from curb to curb, and the Hodiamont right of way is 30 feet wide. The width of the tracks is 5 feet 10 inches. The distances between the tracks on the Hamilton avenue and Hodiamont lines are 4 feet 8 inches and 6 feet 2 inches, respectively, and the distance from the west rail of the south-bound track, on Hamilton avenue, to the west curb is 10 feet and 5 inches; and the distance from the south rail of the east-bound track, on the Hodiamont line, to the south line of the said right of way, is about 6 feet 6 inches.

The evidence further disclosed that Hamilton avenue, at its intersection with the Hodiamont street car tracks, was a transfer point, much used as a crossing by pedestrians, and that it was customary for passengers alighting from north-bound Hamilton cars, and intending to board east-bound diamont cars, to cross south of the Hodiamont tracks and north of the south line of Hamilton avenue.

Just prior to the accident plaintiff was a passenger on a north-bound Hamilton avenue car. She intended to board an eastbound Hodiamont car at the intersection of Hamilton and the Hodiamont tracks. When the north-bound Hamilton car reached said intersection it stopped on the south side of the Hodiamont tracks, and as plaintiff alighted from the front platform thereof she observed a south-bound Hamilton car standing on the north side of the Hodiamont tracks and an east-bound Hodiamont car standing on the west side of the Hamilton avenue tracks. She further observed that these cars had stopped for the purpose of taking on and letting off passengers, and that Hamilton avenue between these three standing cars was free of vehicles. Thus noticing the situation before her (and intending to take the east-bound Hodiamont car) plaintiff passed immediately around the front end of the north-bound car, and hurriedly walked west, and about 4 feet south of the Hodiamont tracks, in front of the south-bound car, and had reached a point somewhere between the west rail of the south-bound track and the west curb of Hamilton avenue when she was struck and seriously injured by defendant's automobile, which was being driven southwardly.

There was evidence to prove that the automobile, at the time of the accident, was being operated in excess of the ordinance speed, and was proceeding, according to some witnesses, at a rate of speed as high as 35 miles per hour. There was also evidence tending to show that said automobile ran past the south-bound Hamilton car while it was standing at the regular stopping place, for the purpose of taking on and letting off passengers, and that no signal of any kind was given by the chauffeur before or as it crossed the Hodiamont tracks. All the evidence was that the south-bound car had stopped on the north side of the Hodiamont tracks, for the purpose of taking on or letting off passengers; the issue as to that car was whether or not the automobile was driven past it while it remained standing as aforesaid.

At the close of the whole case the defendant offered, and the court refused to give, an instruction in the nature of a demurrer to the evidence. Defendant contends that this instruction should have been given, for the reason that the plaintiff was herself guilty of contributory negligence as a matter of law.

At the trial plaintiff testified that at the time she started to cross the track in front of the north-bound and south-bound cars she noticed the south-bound car standing, and supposed that the coast was clear, because she knew the city ordinance required vehicles to remain at the rear of a street car which had stopped to take on or let off passengers, and to remain standing until such street car resumed motion; that she did not know when the south-bound car started, but that she was certain it did not start before she got to the south-bound track, and that she did not look to the north or to the south after she started across, but looked west in the direction of the east-bound Hodiamont street car.

Counsel for defendant contend that, assuming it be true that plaintiff saw the southbound car standing, and knew no vehicles should pass it, yet this did not excuse her from looking to see if and when the southbound car started; that the duty was imposed upon her, before crossing the south-bound street car track, in the exercise of ordinary care for her own safety, to again look and see where the south-bound car was, and whether she could still cross its track with safety; that, having failed to do so, she was guilty of negligence as a matter of law.

Viewing the evidence, as we must, in a light most favorable to plaintiff, and admitting as true every fact and inference that may be reasonably deduced therefrom, we cannot hold, as a matter of law, that plaintiff was guilty of contributory negligence.

It will be noted that there was evidence to the effect that the south-bound car remained standing at the time plaintiff was struck by the automobile, and that the automobile, in violation of the city ordinance, was driven past the standing car at a high rate of speed. It will be further noted that plaintiff, when she started to cross the track in front of the north-bound and south-bound cars, saw the south-bound car standing about six feet north of the Hodiamont tracks. She knew that the distance she had to travel to cross the south-bound track was about 15 feet, and that the south-bound car had to travel, after it resumed motion, about 27 feet before it could reach the line of travel she intended to take; she also presumed that no south-bound vehicles would be driven past the south-bound street car while said car remained standing, but that all such vehicles would remain at the rear of said street car until such car had resumed motion. Thus viewing the situation, it cannot be said that her failure to look again at the south-bound car before crossing the south-bound car track was contributory negligence as a matter of law.

According to plaintiff's evidence, she was not endangered by the south-bound car. She had safely crossed the car tracks, and would have had ample time to cross the street, in perfect safety, if defendant had observed the city ordinances, as she had only about 25 feet to travel, while the automobile (if standing at the rear of the south-bound car) had to start and proceed about 70 feet to reach her line of travel. Under the circumstances plaintiff had the...