Frank v. Meletio

• Decision Date: 06 March 1923
• Docket Number: No. 96849.,96849.
• Citation: 251 S.W. 95
• Parties: FRANK v. MELETIO
• Court: Missouri Court of Appeals

251 S.W. 95

FRANK v. MELETIO

No. 96849.

St. Louis Court of Appeals. Missouri.

March 6, 1923.

Rehearing Denied April 6, 1923.

Appeal from St. Louis Circuit Court; Victor E. Falkenhainer, Judge.

"Not to be officially published."

Action by Dr. W. E. Frank against William A. Meletio. After a trial in a justice's court, plaintiff recovered judgment in a circuit court, from which defendant appeals. Reversed and remanded.

Wilbur C. Schwartz, of St. Louis, for appellant.

H. C. Whitehill, of St. Louis, for respondent.

NIPPER, C.

This case originated in a justice court in the city of St. Louis. Plaintiff seeks to recover of defendant $500, for damages alleged to have been sustained by him by driving his automobile against a pile of brick and other building material located on Locust street in front of property numbered 3128. It is alleged that the collision was caused by the negligence of the defendant in not having the brick pile and building material sufficiently lighted. It is also alleged that defendant was negligent in violating a city ordinance of the city of St. Louis with respect to the portion of a street which may be used for building material. Plaintiff recovered judgment for $210, and defendant appeals.

The accident happened about 5:30 or 6 o'clock a. m. on December 25, 1916. Plaintiff, who is a practicing physician and surgeon in the city of St. Louis, was driving eastward on Locust street in a Ford roadster. About four blocks west of the place where the collision occurred he was hailed by two of his friends, a Mr Stokes and a Mr. Hurlebaus, who got into the automobile with him and started eastward. These two were going to the McKinley Station, where they expected to catch what is called in this record "a 5 o'clock train." At the time of the accident it was still dark. While driving at about 15 miles an hour, plaintiff ran into a pile of building brick which was about 7 or 8 feet high on each end, and about 40 feet in length. A few feet from the west end of this pile of brick there was an extra layer of brick. From plaintiff's evidence it appears that there were two unlighted red lanterns on the main pile, near each end; and about 30 feet apart, but that neither of these lanterns were lighted and both were cold, indicating that they had not been lighted for some time prior thereto. Plaintiff testified that he remembered seeing a brick pile, which appeared to be approaching him very rapidly, but that on account of there being no lights on the brick pile he was unable to see the same in time to avoid striking it. He did not remember the exact distance he was away from the pile of building material when he first saw it, but thought, perhaps, about 15 or 20 feet, at which time he threw out the clutch and put on the brake, and attempted to turn, but was too close to avoid striking it. His machine was equipped with acetylene gas lights with plain lenses. He testified that they would throw a light about 15 feet from the machine, but that the rays of light would be carried much further. He said that Locust street at this point was about 35 feet wide, and this brick or building material extended about 10 feet and 8 inches out into the street from the curb. He was corroborated by the parties who were accompanying him in the automobile. Plaintiff introduced in evidence an ordinance of the city of St. Louis requiring every person occupying, or causing to be occupied, any portion of a public street with building material, to cause one red light to be posted on or near such building material if such obstruction does not extend more than 10 feet in length, and, if over 10 and less than 50 feet, two red lights, one at each end, shall be so placed and kept burning during the entire night.

Defendant asked for a peremptory instruction at the close of plaintiff's case which the court refused to give.

There was evidence offered on behalf of the defendant which showed that both lights on this brick pile were burning about 5:15, or something like 15 minutes before the accident occurred.

Defendant also offered in evidence section 2585, art. 3, of the Revised Code of the City of St. Louis, prohibiting automobiles from...