Gambell v. Irvine

• Decision Date: 02 February 1937
• Docket Number: 24060
• Citation: 102 S.W.2d 784
• Parties: GRACE L. GAMBELL and BESSIE BJARKLUND, Executrices of the Estate of HILDA PETERSON, Deceased, Respondents, v. R. R. Irvine, Defendant, CHICAGO-ST. LOUIS TRANSFER COMPANY, a Corporation, and HARRY McCREARY, Appellants
• Court: Missouri Court of Appeals

102 S.W.2d 784

GRACE L. GAMBELL and BESSIE BJARKLUND, Executrices of the Estate of HILDA PETERSON, Deceased, Respondents, v. R. R. Irvine, Defendant, CHICAGO-ST. LOUIS TRANSFER COMPANY, a Corporation, and HARRY McCREARY, Appellants

No. 24060

Court of Appeals of Missouri

February 2, 1937

Appeal from the Circuit Court of the City of St. Louis. Hon. John W Joynt, Judge.

AFFIRMED.

Jefferson D. Hostetter, Presiding Judge. Becker and McCullen, JJ Concur.

OPINION

Jefferson D. Hostetter

This suit was instituted in the circuit court of the city of St. Louis by Hilda Peterson to recover damages for personal injuries alleged to have been sustained by her on October 14th, 1933, when she was struck by a tractor operated by the defendant Harry McCreary, an employee of the defendant, Chicago-St. Louis Transfer Company, a corporation. P. R. Irvine was joined as a defendant, it having been averred in the petition that he and said Transfer Company jointly owned and operated the tractor which injured the plaintiff, but at the conclusion of the plaintiff's testimony the court gave an instruction in the nature of a demurrer to the evidence as to said defendant R. R. Irvine and an order of dismissal was subsequently made as to him.

At the conclusion of the trial on October 30th, 1934, a verdict was returned in favor of the plaintiff, Hilda Peterson, and against defendants Harry McCreary and the Chicago-St. Louis Transfer Company for the sum of $6,000. In accord with the verdict a judgment was immediately entered in favor of Hilda Peterson and against McCreary and said Transfer Company in the sum of $6,000.

In due time following the rendition of the verdict and judgment thereon, defendants McCreary and the Transfer Company filed their joint motion for a new trial. On November 9th, 1934, while this motion for a new trial was pending, the plaintiff died, but her death was not suggested to the trial court, and, on December 17th, 1934, the court, without knowledge of plaintiff's death, overruled the defendants' said motion for a new trial.

On January 29th, 1935, the said two defendants appealed from said judgment to this Court, where the plaintiff's death was then suggested.

On June 11th, 1935, it being made to appear that the death of the plaintiff occurred after the rendition of the verdict and judgment and prior to the ruling of the trial court on said defendants' motion for a new trial, their appeal was dismissed and the cause remanded to the trial court, this Court in effect holding that the suggestion of plaintiff's death and the revival of the cause in the name of the personal representatives of the deceased plaintiff should have been made in the trial court.

On June 12th, 1935, after the cause had been remanded to the trial court, the latter set aside its order overruling defendants' motion for new trial and granting the appeal, and reinstated the cause on its docket as of November 9th, 1934, and revived the cause in the name of the executrices of Hilda Peterson, deceased, and took the motion for a new trial as submitted, and, on June 24th, 1935, the trial court overruled defendants' motion for a new trial upon condition that the executrices remit the sum of $1,000 from the judgment. This remittitur was duly made and the motion for a new trial overruled and a new judgment for $5,000 entered in favor of the executrices of Hilda Peterson, deceased plaintiff, and against the defendants.

On August 3rd, 1935, and during the same term of court the defendants filed their motion to set aside the court's order of June 12th, 1935, reviving the cause and all subsequent orders and proceedings. The court, after hearing evidence upon the motion, overruled the same and the two defendants thereupon duly perfected their appeal to this Court.

Hilda Peterson, the deceased plaintiff, was born in Sweden, but had been a resident of St. Louis since 1904, was unmarried, and was 74 years old at the time of the accident; her health was good and her hearing and eyesight were also good end for the prior 25 years she had followed the occupation of giving Swedish, massages. She was struck and injured by defendants' motor vehicle on October 14th, 1933, around 4 o'clock in the afternoon, at or near the intersection of Belt and Easton Avenues in the city of St. Louis. Easton Avenue is an east and west street and Belt Avenue is a north and south street.

Plaintiff's amended petition, on which the case was tried, contained numerous charges of negligence on the part of defendants, but in the submission of the case all of the charges were abandoned except three, which were as follows:

(1) That the defendants failed to sound or give a signal or warning of the approach, proximity or movement of said tractor.

(2) That the defendants, in violation of section 1, paragraph D of Ordinance No. 38614 of the city of St. Louis, operated said tractor, a commercial motor vehicle having a rated live load capacity of two tons and less, at a rate of speed exceeding twenty miles per hour.

(3) That the defendants saw, or, by the exercise of the highest degree of care, could have seen, plaintiff in a position of imminent peril in time thereafter to have stopped said motor vehicle, slackened its speed, swerved it, or given a warning signal of its approach, proximity or turn, and thus avoided striking the plaintiff, but negligently failed to do so.

The answers, in addition to a general denial, pleaded contributory negligence on plaintiff's part in failing to look in either direction for traffic while attempting to cross Easton Avenue, and in attempting to step backward in the middle of Easton Avenue after having passed in front of and cleared the tractor, and when the plaintiff could have seen the tractor in time to have avoided being struck.

The evidence showed that at the point where the accident occurred, Easton Avenue runs approximately east and west and is fifty feet wide, from curb to curb, and is occupied in the center by two street car tracks, and that the distance between the outside rails of the street car tracks is approximately fifteen feet, leaving about seventeen feet from the outside rail of each track to the nearest curb, and that Belt venue enters Easton Avenue from the south, but does not continue northwardly from Easton and that Semple Avenue enters Easton Avenue from the north, a distance of 133 feet east of Belt Avenue, and that Arlington Avenue intersects Easton Avenue east of Semple and that the distance from Belt Avenue to Arlington Avenue is approximately 400 feet.

Plaintiff was able to furnish few details regarding the accident. She testified that she had been out to Wellston on some errands, and took an eastbound Easton Avenue street car for the purpose of going to her home; that she left the car at the west side of Belt Avenue, and entered a fruit store at the southwest corner, where she made some purchases. On coming out of the store she stood on the curb, watched a number of eastbound automobiles go by, and when the way was clear started north to cross Easton. Avenue and while crossing something struck her; she did not see what it was. Before leaving the curb she looked to the east, and saw no westbound automobiles approaching.

Defendant McCreary, driver of the tractor, testified in substance that at the time of the accident he was proceeding west on Easton Avenue at about 15 and not more than 20 miles per hour. His testimony as to when he first saw plaintiff varied and was somewhat conflicting. The following questions and answers appear in his testimony on direct examination:

"Q. When was the next that you saw the plaintiff? A. I saw her all the time she was crossing the street, but she had done passed me and she was standing right to my right and passed my vehicle.

"Q. Did you attempt to pass her on her left or on her right? A. She was facing north and south, and I was coming in back of her.

"Q. And then what happened? A. Just as I got about ten feet from her, evidently she got scared away and I don't know what happened, but she must have got scared of this other machine; and as she stepped back I swerved over to the south side of the street and jammed my brakes no more than she stepped back.

"Q. What distance did you travel from the time you first applied your brakes until you came to a standstill? A. I never went the full length of the tractor.

"Q. And what is the length of the tractor? A. It isn't ten feet; that is the complete length for it.

"Q. And did your tractor touch this woman at any time? A. My right front fender hit her.

"Q. Did you blow a horn at any time? A. There was no necessity for blowing a horn.

"THE COURT: Answer the question yes or no. A. No, sir; I didn't.

"Mr. Kreisman (resuming examination) (Q): At the time you attempted to pass in back of her, she was standing perfectly still north of your vehicle? A. Tes, sir.

"Q. Now, when you stopped your truck where was this woman? A. Right alongside the front of the rear tires.

"Q. And did you pick her up and help her to the sidewalk? A. Yes, sir; I picked her up and carried her over to the north side of the street."

He further stated that he first saw plaintiff crossing the street about 15 to 20 feet east of the intersection of Belt Avenue with Easton, about five doors down. As to when he first saw plaintiff, his testimony was conflicting. He first stated that she had left the south curb of Easton Avenue going north and wasn't far from the curb. Later he said that she was just leaving the sidewalk on the south side of Easton Avenue going north across Easton. At that time he was about 25 or 30 feet from her, or maybe more than that.

"Q. Did you continue on? A. No, sir. I slowed down to about 15 miles an hour until she got past me, and there was a...