Flynn v. St. Louis Public Service Co.

• Decision Date: 08 September 1931
• Docket Number: No. 21509.,21509.
• Citation: 41 S.W.2d 885
• Parties: FLYNN v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

41 S.W.2d 885

FLYNN v. ST. LOUIS PUBLIC SERVICE CO.

No. 21509.

St. Louis Court of Appeals. Missouri.

September 8, 1931.

Rehearing Denied September 29, 1931.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Vincent M. Flynn against the St. Louis Public Service Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

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

William L. Mason, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by plaintiff in a collision between his automobile and one of defendant's street cars. The collision occurred at the intersection of Walton and McPherson avenues, in the city of St. Louis. There was a down grade approaching the intersection from east to west. Plaintiff was moving westward, and the street car was moving eastward, on McPherson avenue. It had been raining and the pavement was wet and slippery. McPherson avenue is forty feet wide and Walton avenue is thirty-six feet wide. From the east curb line on Walton avenue, at the northeast corner of the intersection to the nearest rail of the street car track, which at that point runs straight north from McPherson avenue, is ten feet. The track on which the east-bound street cars proceed eastward to Walton avenue begins to curve toward the north at a point thirty feet west of the west curb of Walton avenue. The distance from the beginning of this curve, following the outside rail around the curve to the middle of Walton avenue, is about fifty feet.

The plaintiff testified, in substance, as follows: "The street car came from the west approaching the west side of Walton avenue at about the same time that my automobile came up to the east side. I was traveling with the left wheels of my automobile slightly north of the center line of the street. The street car came up to a point about thirty feet from the west curb line at about the same rate of speed that my automobile was coming up to a point about twenty-five or thirty feet from the east curb line of Walton avenue, to wit, about twenty-five miles an hour. Just as the street car got to the beginning of the curve in the track it slowed down to about four miles an hour and immediately accelerated its speed as it came into the curve, at the same time turning toward the north, and as soon as I saw that the street car was turning toward the north, and when I was at a point about twenty-five feet from the east curb line of Walton avenue, I put on my brakes, and my automobile moved, with brakes applied, about thirty-five feet to the point of collision. The collision occurred when the front end of the street car was past the north curb of McPherson avenue, at the northeast corner of the intersection. Between the time of the collision and the time I put on my brakes, when I was about twenty-five feet east of the curb line of Walton avenue, my automobile moved about thirty-five feet, and at the time I put on my brakes the front of the street car was about seventy-five feet from me. From the time I put on my brakes to the time of the collision the street car was increasing its speed, and my automobile, on account of the application of the brakes, was slowing down. As the street car entered the curve it had slowed down to four miles an hour, and the speed of the car was increased to about fifteen miles an hour at the time of the collision. At the rate of speed which my automobile was traveling at the time I applied my brakes, it could have been stopped within fifty to sixty feet. When I applied the brakes the automobile started to slide on the wet pavement, and slid into the side of the car, about the second window from the rear on the right-hand side, and then the rear sweep of the car came out and struck me with great force. The street car was about fifty feet long."

Plaintiff in his petition alleges that, when his automobile had reached a point from fifty to one hundred feet east of Walton avenue, defendant's street car approached the intersection rapidly, and suddenly made a turn toward the north, thereby occupying almost the entire width of McPherson avenue, directly in front of plaintiff's automobile; that plaintiff was unable to stop his automobile and it collided with the street car, as a result of which he suffered serious, painful, and permanent injuries; that his injuries so received were directly due to the negligence of the defendant, by its agents and servants operating said street car, and said negligence consisted in this, to wit: That the motorman operating the street car saw, or by the exercise of ordinary care could have seen, plaintiff approaching and near to the intersection, and knew, or in the exercise of ordinary care could have known, that, if said street car was turned toward the north and across the street in front of plaintiff's automobile, there would be great danger of a collision between said street car and said automobile, and that it would be practically impossible for plaintiff to stop his automobile or divert the course of the same in time to avoid a collision, and that said motorman saw, or in the exercise of ordinary care could have seen, the said situation of plaintiff, and plaintiff's imminent peril, before he turned the street car toward the north across McPherson avenue, and in time, by the exercise of ordinary care, after he saw, or in the exercise of ordinary care could have seen said dangerous situation, for the said motorman to have avoided the said collision by stopping his street car or checking the speed of the same; nevertheless, the said motorman drove the said street car around said curve and in front of plaintiff's automobile without exercising ordinary care in any of the particulars aforesaid to avoid said collision, and that, as a direct result of said negligence of defendant, through its motorman, the said collision and plaintiff's injuries occurred.

The answer is a general denial coupled with a plea of contributory negligence.

At the conclusion of the whole case defendant offered an instruction in the nature of a demurrer to the evidence, which the court refused.

At the instance of the plaintiff the court gave to the jury the following instruction: "The court instructs the jury that if you find and believe from the evidence that the street car approached the intersection of McPherson and Walton avenues proceeding eastward on McPherson avenue at the same time that plaintiff driving his automobile was approaching the intersection proceeding westward on McPherson avenue, and if you further find and believe from the evidence that the street car, by the motorman in charge of the same, was turned from McPherson avenue north into Walton avenue across in front of plaintiff's automobile, and across the path of the same, and that there was a collision between the automobile and the street car as a direct result of the street car turning toward the north in front of the automobile, and if you further find and believe from the evidence...