Friedman v. United Rys. Co. of St. Louis

• Decision Date: 18 March 1922
• Docket Number: No. 22728.,22728.
• Citation: 238 S.W. 1074,293 Mo. 235
• Parties: FRIEDMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

238 S.W. 1074

293 Mo. 235

FRIEDMAN v. UNITED RYS. CO. OF ST. LOUIS.

No. 22728.

Supreme Court of Missouri, Division No. 2.

March 18, 1922.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Suit by Tillie Friedman against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff sued for $15,000 damages. Upon a trial the jury returned a verdict for defendant, and she appeals. The basis of the action is a collision, occurring about 8 o'clock p. m. on the 4th day of September, 1918, at Kingshighway and Wise avenue in the city of St. Louis, between a street car of respondent and an automobile owned and driven by appellant's husband and in which she was riding. The negligence charged was the violation of the vigilant watch ordinance and the speed ordinance of the city of St. Louis. Sundry injuries were alleged. The answer of respondent ascribed appellant's injury, if any, to her own carelessness and negligence, and was tantamount to a general denial.

For appellant, the testimony showed that she and her husband had been driving through Forest Park in her husband's Ford coupe and had entered Kingshighway, a north and south street, driving toward the south; that as they approached Wise avenue, a street running east and west, they turned in toward the sidewalk on the west side of Kingshighway, preparatory to turning back to the north. At this point Kingshighway is about 65 feet wide. Respondent's street car tracks are laid thereon in such way that there is a space of 40 feet between the west curb of Kingshighway and the west rail of said track, so that vehicular traffic goes both north and south on Kingshighway on the west side of the street car tracks, the east side of said tracks being used also for northbound traffic.

Appellant's husband had made the turn, and his automobile was running in a northeasterly direction at the time of the collision. The street car was coming from the north. Appellant said:

"We came down Kingshighway, my husband stopped and then turned. While he was turning eastwardly and northwardly, he was not driving very fast. He was looking. I was looking also. * * * I remember when my husband had just about turned he had this terrible collision. * * * We were going northeast at the time, and he was starting to cross the street car tracks to get on the east side of the street. I did not see the street car coming down there before the accident, only saw it momentarily just as we were struck."

On cross-examination she said:

"When I was 5 feet of the track I looked north and could see a block up the street car tracks and didn't see a street car until the moment of the collision. I was looking for one all the time. I never tell my husband, he always stops. 11 placed myself entirely in his hands and was depending upon him to avoid a street car. But I always look around. I looked also. I depended more upon my husband to discover the street car than I did upon my self."

Appellant's testimony further showed that the street car was being operated in violation of the speed ordinance and that she suffered rather severe injuries.

Respondent's testimony tended to show that after appellant's husband had turned his automobile toward the north, while the street car was passing, he suddenly turned to the right, bringing it in collision with the street car, and otherwise there was substantial testimony on the part of respondent contradicting that adduced by appellant.

The court gave 7 instructions requested by appellant. Respondent offered no instructions and made no requests. The court refused to give appellant's requested instruction, numbered C. Appellant's instruction covered the allegations of the petition and submitted the question of appellant's own negligence as a contributing factor to her injuries.

She complains that the verdict of the jury was against the law and evidence and that the trial court committed manifold errors during the trial, all of which, with additional pertinent facts, will be discussed in the course of the opinion.

Karl Vetsburg, of St. Louis, for appellant.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for respondent.

RELIVES, C. (after stating the facts as above).

1. There was substantial testimony tending to show appellant's negligence. She said her husband was driving slowly, and that, when within 5 feet of the track, she looked toward the north where she could see a block up the street car tracks but saw no street car, and that immediately the collision occurred.

Her witnesses said that the street car was running from 20 to 25 miles per hour. There was no reason why the approaching street car could not have been seen by appellant, as well as by her husband, as she said they were both looking for a street car. It was her duty thus to look (Burton v. Pryor [Mo. App.] 198 S. W. 1117; Leapard v. Railways Co. [Mo. App.] 214 S. W. 268, and cases cited), and failure to perform this duty, or to perform it badly, was negligence. The automobile being only 5 feet from the car track, moving in a northeasterly direction for' the purpose of crossing over, and the view being unobstructed, the street car was clearly visible to appellant while it covered the intervening distance of a block before the collision. Whether such testimony was unreasonable or not (Alexander v. Railway [Mo. Sup.] 233 S. W: 44; Evans v. Railroad [Mo. Sup.] 233 S. W. 397), appellant treated it as raising a question of fact for the jury as she submitted, in practically all of her 7 instructions, the question of her own negligence.

The rule is well established that where there is substantial testimony on both sides of a debatable question, it is for the jury and the trial court, and not for the Supreme Court, to weigh such evidence. Thomasson v. Hunt (Mo. Sup.) 185 S. W. 165; Daniel v. Pryor (Mo. Sup.) 227 S. W. 102; Moore v. Railroad, 268 Mo. 31, 186 S. W. 1035; Haines v. Railroad, 193 Mo. App. 453, 185 S. W. 1187; De Wolff v. Morino (Mo. App.) 187 S. W. 320; Robertson v. Kochtitzky (Mo. App.) 217 S. W. 543.

Moreover, respondent's witness Woody said that, as the automobile completed its turn and was on the moment of passing to the Left of the approaching street car, it suddenly turned to the right and ran into the street car, thus raising the question as to whether or not the negligence of appellant's husband was the proximate cause of the collision and consequent injuries to her.

A verdict supported by evidence will not be disturbed by this court (State ex rel. National Bank v. Sturgis, 276 Mo. 559, 208 S. W. 458; Ellis v. Railroad, 234 Mo. 657, 138 S. W. 23), and particularly is this true where the trial court has overruled a motion for a new trial, based in part Upon the alleged insufficiency of the evidence (Alexander v. Railroad, 282 Mo. 236, 221 S. W. 712, 11 A. L. R. 867). In actions at law, it has even been held by this court that the weight of undisputed parol evidence is for the triers of fact, and their findings are conclusive (Union Trust Co. v. Hill, 283 Mo. 278, 223 S. W. 434).

2. Immediately after the accident appellant was taken to the hospital in the automobile of witness Woody. Appellant was not unconscious, but hysterical, and, in her excitement, she said, "Oh, daddy, you have killed me," to which her husband replied, "It was your fault, sweetheart, you grabbed the wheel." Whereupon, appellant said, "I know it was, I don't blame you, sweetheart"

Appellant strenuously objected to this testimony, upon the twofold grounds that appellant was irresponsible, and her husband being incompetent as a witness, the statements made by him were Incompetent. These statements were in the nature of admissions against interest and were competent (22 C. J. 231, 297; Linderman v. Carmin, 255 Mo. 62, 164 S. W. 614; Id., 142 Mo. App. 519, 127 S. W. 124; Chambers v. Chambers, 227 Mo. 262, loc. cit. 285, 127 S. W. 86, 137 Am. St. Rep. 567; Tuite v. Woodmen Circle, 193 Mo. App. 619, 187 S. W. 137; Wilson v. Albert, 89 Mo. 537, 1 S. W. 209; Forrister v. Sullivan, 231 Mo. 345, 132 S. W. 722; Sparr v. Wellman, 11 Mo. 230; Heller v. Ferguson, 189 Mo. App. 484, 176 S. W. 1126; Gillespie v. Insurance Co., 168 Mo. App. 320, 153 S. W. 1079), and it was the duty of respondent to show the whole conversation, including the statements of appellant's husband (22 C. J. 411; Kritzer v. Smith, 21 Mo. 296). Whether this waived the incompetency of appellant's husband as a witness, we need not decide as appellant's counsel withdrew him as a witness after the court had ruled in favor of his competency, and the hysterical state of mind of appellant would only bear on"the weight and credibility of such statements.

3. The complaint that the court excluded competent testimony offered by appellant is untenable. Appellant attempted to show that her husband was a careful driver, had never had a previous accident, and had been driving carefully on the day of the collision. The court was most liberal in her favor, as he permitted appellant to testify, over the objection of respondent, that her husband was a fair driver and that he was driving slowly immediately before the accident (referring to the drive...