Herrin v. Stroh Bros. Delivery Co.

• Decision Date: 13 June 1924
• Docket Number: No. 18471.,18471.
• Citation: 263 S.W. 871
• Parties: HERRIN v. STROH BROS. DELIVERY CO.
• Court: Missouri Court of Appeals

263 S.W. 871

HERRIN v. STROH BROS. DELIVERY CO.

No. 18471.

St. Louis Court of Appeals. Missouri.

June 13, 1924.

Rehearing Denied July 1, 1924.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by William Herrin against the Stroh Bros. Delivery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Case & Miller, D. W. Voyles, and Wm. Zachritz, all of St. Louis, for appellant.

Edward W. Foristel and O. J. Mudd, both of St. Louis, for respondent.

DAUES, J.

This is an action for damages for personal injuries. The suit was begun against the Globe-Democrat Publishing Company and Stroh Bros. Delivery Company, both Missouri, corporations. The publishing company was let out at the close of plaintiff's evidence on a peremptory instruction. The trial then proceeded against the defendant Stroh Bros. Delivery Company, resulting in a verdict and judgment in favor of plaintiff and against this defendant in the sum of $4,900, from which judgment defendant has taken this appeal.

The petition charges that plaintiff was injured on Prairie avenue, a public street in the city of St. Louis, by being struck by a truck operated by defendant, which it is alleged was backed into him. Several assignments of negligence are contained in the petition. Plaintiff, however, stood upon only two of them, to wit, a failure to give a signal or warning of the approach of the truck and a violation of section 1275 of the Revised Code of the City of St. Louis, which provides that every driver of a vehicle shall before backing same give ample advance signal, indicating that the vehicle will back up, and to exercise unceasing vigilance while backing so as to avoid a collision with pedestrians, etc.

The defendants, each, filed a general denial as an answer.

As already stated, the court sustained a demurrer to the evidence offered by the Globe-Democrat Publishing Company at the close of plaintiff's case, and the trial proceeded against this appellant alone. We will therefore refer to appellant as the sole defendant.

The pleadings are in no wise directly involved in the issues presented in this court. There is no question raised about the extent of plaintiff's injury or the size of the verdict. The main appellate question in the case runs to a consideration of the evidence on the demurrer thereto, and we therefore set out in our statement of the case so much of the evidence as affects this question, having in mind the rule that we must look to the record for the evidence most favorable to

Plaintiff testified that he left his home at 1315 Prairie avenue, which is located on the southwest corner of Prairie avenue where same intersects an alley running westwardly from Prairie avenue. Prairie avenue runs north and south and the alley is between Page and Evans avenues. Plaintiff's home was so situated that one could see the alley from the windows of plaintiff's house. It appears that about 4 o'clock on the morning of December 7, 1921 (Wednesday), plaintiff left home, going along Prairie avenue until he crossed the alley, and just as he passed the alley he turned diagonally across Prairie avenue in a northeast direction. He said that as he crossed the alley, and before attempting to cross Prairie avenue, he stopped and looked both ways for passing traffic, and that he did not see any in either direction; that as he turned from the south side of Evans avenue and succeeded in getting about halfway across the street he heard a purring noise; that he looked around Quickly and saw a truck upon which was painted in large letters the words "Globe-Democrat," and that he was instantly struck by this truck. He said the words "Globe-Democrat" were painted on the side of the top of the truck. Plaintiff said that about a hundred feet down the alley west of his (plaintiff's) home, one Harry Newton conducted a paper carrier business, and that prior to this accident plaintiff had frequently seen an automobile truck in the alley, between 3 and 4 o'clock in the morning, and that this truck had the words "Globe-Democrat" painted on it; that he could see this by reason of the lights from his windows into the alley. Witness said that he had seen this machine as often as a dozen times in a month over a period of five or six years. When asked to describe the truck which he had seen in the alley from time to time, he said it was bigger than a Ford, but that it might have been a Ford truck, describing it as having a box with sides upon it. He testified that before hearing the purring noise of the truck, and before he was struck, he heard no warning by way of a horn, or otherwise, and that he was unable to further describe the truck because he was knocked senseless immediately upon turning around. The truck drove on, and after plaintiff had recovered: consciousness he called for help and a neighbor carried him home.

On cross-examination plaintiff located the position where he was struck as being nearly in the middle of Prairie avenue. He stated that as he glanced back just before being struck he could see that it was the rear end of the truck backing towards him, the front of the truck being headed southwest, and that the rear of the truck had no light on it, but he was unable to say whether or not there were any lights on the front of the truck. He fixed the time of the accident at about 10 minutes to 4 in the morning; he said it was not very dark at that point, there being a street light on the corner, and that it was light enough for him to see the sign "Globe-Democrat" painted on the side of the truck. It is his testimony, too, that he had never seen any vehicle or truck come out of this alley at that time in the morning except the truck having the sign "Globe-Democrat" upon it, and that while he had never seen the truck back out of the alley before, he had seen same driven into it, and that he had also seen it driving out of the alley foremost; that the car he had seen in the alley before seemed to be about a two-ton truck, although he was not certain as to the exact size, but that same had a top on it; and that he had often seen that the truck had the words "Globe-Democrat" painted on the side of same about midway. He also testified that in crossing the alley on the morning in question he had not seen anything in the alley, and that he walked about 10 feet beyond the alley before beginning to cross Prairie avenue, and that he was about in the middle of the street when he was struck.

Fanning Herrin, plaintiff's wife, testified that she stood at the window while plaintiff crossed the alley on this morning, and that just after plaintiff had passed by the alley, she noticed a truck back out of the alley, and that the truck had the words "Globe' Democrat" painted on the side of it. She said she then turned away from the window and did not see the accident, but that a few minutes later she heard plaintiff moaning and went to the front door, and a neighbor was carrying plaintiff into the house. Witness further testified that she had seen a truck in the alley about that time in the morning very frequently before this accident, and that she had noticed the marking of the truck, and that sometimes she had seen the words "Stroh Bros.," painted on the truck. Asked whether it had any other marking on it, she answered: "Well, have seen some `Globe-Democrat.'" She said that the truck she had seen at this time in the morning always carried newspapers and that the truck would go down the alley as far as Mr. Newton's place, and that the truck would then back out of the alley again.

W. C. Houser, the secretary and treasurer of the Globe-Democrat Publishing Company, was placed on the stand by plaintiff, and testified that the publishing company had not operated any trucks for delivering papers in December, 1921, but that the delivery of the papers was made by defendant, Stroh Bros. Delivery Company, and that this arrangement existed at the time this injury occurred and for about 25 or 30 years prior thereto. Witness said that the trucks used by defendant for the delivery of papers prior to the date of this injury contained the lettering "St. Louis Globe-Democrat"; that these signs were removed at the direction of the publishing company after this injury occurred. It was this witness' testimony that the contract for the delivery of papers was held by the defendant alone, but the; about three years before the date of the trial (March 14, 1923) it had become necessary to use more trucks than the defendant delivery company could provide, and that from time to time the publishing company had a weekly arrangement with some other carriers to deliver papers to help out the Stroh Bros. Delivery Company. He, however, was unable to say whether these additional trucks carried the letters "Globe-Democrat" or not. He said that these additional carriers, employed from time to time, had different and distinct routes to be supplied with papers. Witness testified on cross-examination that he knew of the arrangement with Carrier Kimmel, who delivered papers to other carriers in December, 1921; that Kimmel delivered only in the city, to carriers, but that he did not know whether Kimmel delivered any papers at Prairie and Evans avenue. He testified also that about the time of the accident a man named Albers was a delivery man, but that the defendant handled all of the delivery business except a few trucks which had been employed to distribute among other routes; that there were six or seven of these additional trucks, but that the great bulk of all the business in the city was handled by the defendant.

Lawrence Sindelar, who lived at 3752 Evans avenue, and who had lived there for about five years prior to the accident, testified that he knew Harry Newton, and that Newton was in the newspaper delivery business. He testified that he frequently saw trucks going westward towards the alley in question between 3:30 and 4 o'clock in the...