Gardner v. St. Louis Union Trust Co.

• Decision Date: 09 July 1935
• Docket Number: No. 32914.,32914.
• Citation: 85 S.W.2d 86
• Parties: GARDNER v. ST. LOUIS UNION TRUST CO.
• Court: Missouri Supreme Court

85 S.W.2d 86

GARDNER v. ST. LOUIS UNION TRUST CO.

No. 32914.

Supreme Court of Missouri, Division No. 1.

July 9, 1935.

Motion for Rehearing Overruled July 30, 1935.

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

Action by Leah Gardner against the St. Louis Union Trust Company, executor of the will of Edwin W. Grove, Jr., deceased, wherein judgment was entered for defendant. From an order granting plaintiff a new trial, defendant appeals.

Reversed and remanded.

Fred H. Blades and Allen, Moser & Marsalek, all of St. Louis, for appellant.

Barker, Durham & Drury, Harry C. Barker, Geo. O. Durham, and T. De Witt Drury, all of St. Louis, for respondent.

HAYS, Judge.

Action for personal injuries sustained by the plaintiff on December 19, 1930, by reason of the automobile in which she was seated, and which was parked on a drive in Forest Park in the city of St. Louis, being struck by an automobile operated by the defendant. The suit was instituted and tried in the circuit court of the city of St. Louis, resulting in a verdict and judgment in favor of the defendant.

Plaintiff's motion for a new trial, duly filed, was at a subsequent term sustained on the seventh specification thereof, which is as follows: "7. The court erred in rejecting competent, relevant and material evidence offered on behalf of the plaintiff to the effect that, under the circumstances, defendant could have stopped his automobile in six (6) feet in the event he had been traveling not exceeding eight (8) miles per hour."

From the order granting plaintiff a new trial, the defendant prosecutes this appeal and assigns error thereon as the basis of the appeal.

The petition on which the cause was tried below alleged that on December 19, 1930, plaintiff was sitting in an automobile that was standing on the south side and against the curb of Wells drive in Forest Park in St. Louis, and that the defendant then and there drove and operated an automobile eastwardly on said Wells drive and caused and permitted the same to collide with the automobile in which plaintiff was seated, with great force and violence, injuring plaintiff as thereafter set out. Said amended petition charges negligence against the defendant in the operation of his automobile in the following particulars, namely: (1) In driving at excessive and dangerous speed; (2) in failing to slacken speed or to stop; (3) in failing to keep a lookout; (4) in failing to swerve; (5) in improperly swerving; (6) in driving at a speed in excess of the ordinance limitation of 8 miles an hour; (7) in failing to drive in a careful and prudent manner and at a speed not endangering life or limb of another, in violation of statute and city ordinance; and (8) in doing such things specified as, when done, would properly bring plaintiff's case within the humanitarian rule, and as also (it is alleged) entitled her to exemplary as well as actual damages.

The petition further alleges that on said date the streets in and about the city and within the park were covered with sheet ice, sleet, and snow and in a slippery and dangerous condition for the driving of automobiles over them.

Defendant's answer contains first a general denial, then charges plaintiff with contributory negligence. After stating that that portion of Forest Park on Wells drive in that particular vicinity and near its intersection with Concourse drive was covered with ice, which made the roadway very slick at that particular point, and that such condition existed at that point but at no other place on such roadway in the park, the charges are that plaintiff had knowledge thereof by reason of the fact that the automobile in which she was riding shortly before her injury had executed capricious movements similar to those of the Grove (defendant) car upon arriving at or near the point aforementioned and had skidded and collided with another car; that she was also aware of the experience the Green car had had just before that; that she was aware of the likelihood of similar accidents at that point from on-coming cars; that she continued, notwithstanding, to sit in the Studebaker car knowingly exposing herself to the dangers stated, and was contributorily negligent in so doing.

The condition and collisions described in the petition and in the answer were shown by the evidence of all the witnesses. It appears that in proceeding eastwardly on Wells drive, approaching Concourse drive, an intersecting roadway, there is a hill or rise, but near the intersection of the two drives the ground becomes approximately level or sloping gently to the east. The slickest ice was on the level. The cars involved in the skidding accidents preceding Gardner's were parked on the north side of the drive when the Gardner car came upon the scene. There was no noticeable ice until the level was reached at a point approximately 100 to 120 feet west of where the Gardner car was parked.

The plaintiff testified that when her car got to the top of the hill it began to skid when the brakes were applied, turned completely around and faced west, then went over and skidded into Mrs. Green's car, then parked on the north side of the road, bending the fenders on both cars. They were driving about 15 or 18 miles an hour. She said the road was very slick there, ice all over.

After being stopped, the Gardner car had been parked in the manner pleaded. Gardner had got out and gone to Mrs. Green's car, Mrs. Gardner remaining in the Gardner car, a Studebaker. While Mr. Gardner was engaged with Mrs. Green's car, the defendant, also driving his automobile eastwardly on Wells drive, likewise skidded as he neared this place and came into collision with the Gardner car, whereby plaintiff sustained serious, permanent, disabling, and disfiguring injuries. This occurred about five minutes after Gardner's accident. The road was 30 feet in width. As the cars were parked, the space left for defendant's passage was reduced to the extent of the space the cars occupied. Plaintiff's version of Grove's conduct was that as she was sitting in the Studebaker as parked on the south side, looking up she saw defendant's car, a Packard, "coming at her as fast as it could, head on, and 10 or 15 feet distant, and that it struck her car and she felt glass falling and blood on her face." On cross-examination she said that when the Gardner car got to the top of the hill the brakes were applied and they skidded; the car turned completely around so it was facing west, and then went over and struck Mrs. Green's car on the north side of the street. She first noticed Mr. Grove's car when distant from her 10 or 15 feet.

The keeper of the Zoological Garden in the park, and a truck driver for the Forest Park Zoo, each gave substantially the same testimony. They saw the three collisions that occurred at that point on that morning, the truck driver himself participating in one of them. They saw Mr. Grove's car as it was coming over the crest of the hill, and they signaled Mr. Grove, who, they said, was approaching at from 45 to 50 miles an hour; they said that defendant did not slacken his speed until he got past them, but appeared to put on his brakes when about 120 feet from the Gardner car, and that defendant's car went on as though it were on sled runners, turned partly around, and hit the Gardner car.

Defendant testified that on the morning in question he entered the park at Skinker road and proceeded along Wells drive; that the road was perfectly clear over the concrete; he encountered no ice on Wells drive before reaching the top of this hill, but some loose snow, and after passing this snow the road up to the crest of the hill was perfectly clear and exposed; that on the top, the hill looked like snow that had melted and frozen and was slick as a piece of mirror; that to the time he reached the crest of the hill he was traveling between 25 and 30 miles an hour, most of the time around 25 miles an hour; that he could not see this ice and snow on the top from the bottom or side of the hill. He saw a commotion possibly a hundred feet ahead, and one of the men of the zoo waving his arms. He applied his brakes before he hit this ice, but as soon as he hit it his brakes were of no avail whatever; that he put his brakes on and off, his clutch in and out, and did everything he could to hold the car back, to stop it. The rear of his car was practically in the center of the road; that he was angling and skidding in that direction and turned his wheels one way and the other, but that made no difference. That he then ran into Mrs. Gardner's car.

On cross-examination he was asked about stopping his car coming up the hill. He answered that he imagined he could have stopped in about three car lengths, at a speed of 30 miles an hour. Thereupon occurred the following and upon the same one of the controverted questions on the appeal depends:

"Q. Thirty miles an hour? A. Yes, sir; I am just estimating it. I have never tried it, I don't know anything about it. That is merely my opinion.

"Mr. Blades: (Q.) That is on a dry street? A. That is on a dry street.

"Mr. Barker: (Q.) You testified, as I understood you, that you applied your brakes on the dry street? A. It was dry only about ten feet before I hit the ice, though, ten or fifteen, possibly.

"Q. About how many feet? A. Ten or fifteen. I am not positive how long it takes to stop a car at thirty miles an hour...