Hawken v. Schwartz

• Decision Date: 15 June 1934
• Docket Number: No. 22819.,22819.
• Citation: 72 S.W.2d 877
• Parties: HAWKEN v. SCHWARTZ.
• Court: Missouri Court of Appeals

72 S.W.2d 877

HAWKEN v. SCHWARTZ.

No. 22819.

St. Louis Court of Appeals. Missouri.

June 15, 1934.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Action by Irene Hawken against Lawrence Schwartz. From a judgment for plaintiff, defendant appeals.

Affirmed.

Bishop & Claiborne, of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff on February 24, 1931, at about 10:30 p. m., when she was struck by an automobile owned and driven by the defendant. Plaintiff, when she was struck, was crossing Big Bend road from east to west, at or near the intersection of Maryland avenue therewith, in the city of St. Louis. The defendant was driving south on Big Bend road.

The trial, with a jury, resulted in a verdict in favor of plaintiff for $5,000. There was a remittitur of $1,500, and judgment was accordingly given in favor of plaintiff for $3,500. Defendant appeals.

Defendant assigns error here for the giving of plaintiff's instruction submitting the case to the jury under the humanitarian rule, insisting that the plaintiff failed to make out a submissible case under that rule.

In view of the nature of this assignment, it becomes necessary to set out the testimony pertinent thereto in some detail.

Plaintiff testified, on her own behalf, as follows: "After having attended a basket ball game at Washington University Field House at Big Bend and Maryland, at about 10:30 p. m., while leaving the field house for an automobile to go home, and while walking with my escort, who was my brother-in-law, and when we reached a point about ten feet from the corner of Big Bend and Maryland, we started to cross Big Bend from the east side to the west side. Quite a number of people were crossing, and as I stepped off the curb and into the street, I looked. Traffic was stopped. I did not see anything moving. There were some automobiles right there at the curb that were not parked, but there were people in them waiting to go. There were in our party, myself, my brother-in-law, my sister-in-law, and Mr. John M. Crutsinger. We walked between two of these automobiles that were waiting at the curb; then we walked on into the middle of the street. There was a space where the northbound traffic would move and a space where the southbound traffic would move, but it was clear; there was nothing there. We got nearly to the center of the street, and I happened to look to the north, and I saw the two bright headlights of an automobile bearing down upon me, and I tried to jump, and was pulled back, and did not succeed in escaping the automobile. I was a couple of steps ahead of my escort, I don't know how many feet, a couple of steps, about eighteen inches. The front part of the automobile hit me. There was no warning sounded by this automobile. Its speed was about twenty miles an hour. The speed was not decreased at any time after I first saw the automobile. The automobile struck my right hip, and the next thing I knew I felt a terrible crash in the back of my head. I don't remember anything else until I woke up in bed. I don't know how long I was unconscious. When I stepped between those cars that were in the line of the northbound traffic the cars were not moving. They were stationary. I stepped a little ahead of my escort when I got into the opening. I was looking into the street when I left the sidewalk. I looked to the south until I got nearly to the middle of the street, and then I looked to the north, as that was the way traffic would have been coming when I got there, and as I looked to the north I saw this automobile about ten feet from me."

John M. Crutsinger testified, for plaintiff, as follows: "At the time of the accident I was at the west edge of the line of cars parked at the curb on the east side of Big Bend Road in front of the gymnasium. When the plaintiff was hit, I was about two or three feet behind her. When I first saw the car, it was about ten feet from her, and if she had continued on where she was the right of the center of the car would have struck her, but she stepped back two or three feet. No horn was sounded. The speed of the car was about fifteen miles per hour, and was not slackened, and the car did not swerve, and it traveled fifteen or twenty feet after it hit her. The left of the center of the car and the left fender hit her, knocking her about eight or ten feet, and knocking her unconscious. We put her in a taxicab and sent her to her home, and I later went to her home. There was no other traffic moving at the time this car struck the lady—not close. There was a space of about fifty to one hundred feet clear of moving traffic. There were lots of people crossing the street at the time. There were cars parked on both sides of Big Bend. There was no traffic moving north at that street at that time, and the nearest car going south on that street I would say was fifty to one hundred feet away. There was an open space between the moving traffic there of between fifty and a hundred feet. There was nothing close behind or in front of the car that struck plaintiff."

Granville Hawken testified, for plaintiff, as follows: "We came out of the field house, stepped toward Maryland, got within about ten feet of the south line of Maryland. As we came to the curb the traffic whistle below blew, and traffic apparently stopped. So we stepped down from the curb and passed between two cars on the east side of Big Bend Road. These cars to my memory were about six feet apart. They don't allow you to park directly on the east side of Big Bend right in front of the field house, but these cars were stopped by a traffic officer somewhere below. We stepped between the cars and stepped out into the open lane. There were no cars moving at all at that time, and we were approaching the middle of Big Bend Road. My sister-in-law was slightly ahead of me. I had hold of her left arm. She was slightly ahead of me, I mean...