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

• Citation: 238 S.W. 529
• Decision Date: 07 February 1922
• Docket Number: No. 16975.,16975.
• Parties: HAHN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

238 S.W. 529

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

No. 16975.

St. Louis Court of Appeals. Missouri.

February 7, 1922.

Rehearing Denied March 7, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by August J. Hahn against the United Railways Company of St. Louis. From judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Bates, Thomas E. Francis, and Charles P. Williams, all of St. Louis, for appellant.

Brownrigg, Mason & Altman, of St. Louis; for respondent.

NIPPER, C.

This is an action for damages alleged to have been sustained by plaintiff, by being struck by one of defendant's street cars being operated westwardly over Easton avenue, at its intersection with Cora avenue, in the city of St. Louis. After demurrers to the evidence were overruled, the case was submitted to the jury on the allegation of negligent speed and under the humanitarian rule. Plaintiff recovered judgment for $7,000, and defendant appeals; and as grounds for reversal urges that the court erred in submitting the case to the jury under the humanitarian rule, and in refusing to give certain instructions on behalf of defendant. It is also urged that the verdict is excessive.

Plaintiff was 51 years old at the time of the trial, and had lived in St. Louis for 39 years. He lived about three blocks away from where the accident occurred. He was employed as clerk of the Eighth district justice court, and was returning to his office after the noon hour, traveling on the west side of Cora avenue. Cora avenue runs north and south, and Easton avenue runs east and west. There is a double line of street railway tracks over Easton avenue. The west-bound cars travel over the northern tracks, and the east-bound cars over the southern tracks. When plaintiff reached the curb at the northeast corner of Cora and Easton avenues, and when about 15 or 18 feet from the north rail of the west-bound car tracks, he looked east as he started to cross Easton avenue, and saw a street car coming, about 150 feet away. He started on across the street, and just about the time he got to the north rail of the west-bound track he looked west and saw no car coming from that direction. Just as he stepped across the south rail of the west-bound track, he heard a gong, and at about the same time was struck by the car, which knocked him some 12 or 15 feet directly west, where he fell near the north rail of the east-bound track. There was nothing to obstruct his view at any place, between the time he left the curb and the time he was struck by the car. He says he formed no estimate as to the rate of speed at which the car was traveling when he saw it coming toward him, but that he had lived in this neighborhood for 35 years, and crossed and recrossed that street many times, and always, as he did on this occasion, formed a sort of mental calculation as to how much time he would have to get across when he saw a car coming. He says he knew that the law prohibited street cars, at that point, from running over 15 miles an hour; that the car was coming toward him and he could not tell the rate of speed at which it was traveling; that after he was picked up he saw the car stopped at a point 200 or 250 feet west of the west curb line of Cora avenue. He was taken home and confined to the house for two months, suffering from a broken or fractured elbow, and injury to three ribs and to the hip. He says the injury to the hip left him without the use of his leg, and made the leg an inch shorter, and 1½ inches less in circumference, and that he has practically no use or control of it; that he has suffered pain every day and every night since the injury, and has to lie in one position before he can sleep; that if he moves a fraction of an inch during his sleep it wakes him; that he has to wear a glove on his left hand to keep the hand warm on account of the injury to the left elbow, and that the arm is "shriveled"; that he has been nervous since the accident, lost 25 pounds in weight, and cannot go into a crowd without feeling that some one is going to hurt him or run into him.

On cross-examination, he said that he took a good look at the car before he started across the street, but could not tell at what speed it was traveling, and would not undertake to fix the rate of speed; that he took a second look at the car just as he stepped across the north rail of the west-bound track, and saw it approaching him, and then looked to the west. He fixes the width of Easton avenue as 60 feet from curb to curb, and Cora avenue as 30 feet. He says he calculated that he could cross the track before the car reached him. He did not call to mind any ordinance of the city of St. Louis at that particular time, but he knew the car should not travel at a rate of more than 15 miles an hour at that point.

On redirect examination, he says that, when he started to step across the north rail of the west-bound track, he gave a side glance at the car and felt perfectly safe, relying upon the motorman to slacken the speed of the car at the intersection of the street. He made no estimate as to the distance the street car was from him at that time.

James Keelan was at the mouth of an alley on the east side of Cora avenue, and 125 feet north of Easton avenue. He saw plaintiff when he stepped off the curb on Cora avenue, going south on Easton avenue, and did not see him any more until after he was struck by the car, and while lying on the street after the car had passed. When he first saw the street car, the front end was past the west side of Cora avenue, and at that time he estimated the car was traveling at 22 or 25 miles an hour. He says the car stopped about 350 feet west of the west curb line of Cora avenue, and that the street on that day was dry. He did not hear the brakes applied to the car until it was on the west side of Cora avenue. He did not see the car strike plaintiff.

Dennis Allen, a newsboy 18 years old, testified that he had started across Cora avenue where it intersects Easton avenue, to a drug store on the northwest corner of Cora and Easton avenues. He was walking on the north side of the street. When asked where be was when he first saw plaintiff that day, he answered:

"When I first seen him I was walking west, and I just walked ahead of him, took a step of him, in front of him as he came over Cora avenue."

As witness started across the street, some one whistled, and he looked around to see who it was. He was then about the middle of Cora avenue, on the north side of Easton avenue. As he looked around he saw plaintiff step off the curb, going due south, and at the same time saw a street car, about 150 feet away on Easton avenue, coming west. Plaintiff was walking in a moderate walk, and continued until he had reached the south rail of the west-bound track when he was struck by the car. The car had made no change in its rate of speed from the time he first saw it, 150 feet away,...