Hicks v. De Luxe Cab Co.
| Decision Date | 03 July 1945 |
| Docket Number | No. 26788.,26788. |
| Citation | 189 S.W.2d 152 |
| Parties | HICKS v. DE LUXE CAB CO., Inc. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.
"Not to be reported in State Reports."
Action by D. H. Hicks against DeLuxe Cab Company, Inc., for injuries sustained when plaintiff's foot was run over by defendant's taxicab. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Albert L. Schweitzer, and W. W. Schiek, both of St. Louis, for appellant.
Geo. L. Vaughn, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for damages for personal injuries sustained by plaintiff, D. H. Hicks, when his left foot was run over by the wheel of a taxicab owned and operated by defendant, DeLuxe Cab Company, Inc. Tried to a jury in the Circuit Court of the City of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $1,700. Judgment was rendered in accordance with the verdict; and defendant's appeal to this court has followed in the proper course.
The accident happened on Jefferson Avenue, in the City of St. Louis, at a point about ten feet south of the alley which runs between Chestnut and Market Streets.
Plaintiff operates a pressing and tailoring business on the east side of Jefferson Avenue between Pine and Chestnut Streets, and defendant has a cab stand at the same general location.
On the occasion in question, plaintiff was attempting to cross Jefferson Avenue from the east to the west. Plaintiff testified that as he stepped off of the curb, he was looking to his left for approaching northbound traffic on Jefferson Avenue; that he stepped down from the curb with his right foot; and that as he made a second step forward, one of defendant's taxicabs backed up and ran over his left foot with its right rear wheel, producing the injury for which he has sued. Prior to the accident he had not noticed the taxicab, and the driver stated to him that he had not seen plaintiff. Other evidence disclosed that the driver was backing in at an angle for the purpose of parking the taxicab in an empty space along the east curb, and that he gave no warning by sounding his horn.
In his petition plaintiff alleged, as grounds of negligence, (1) that the driver failed to sound his horn; (2) that he failed to keep a vigilant watch for persons crossing the street "as it was his duty to do under the ordinances of the City of St. Louis"; (3) that he failed to operate his taxicab in such a manner as not to endanger the lives and persons of individuals traveling over the street; (4) that he saw, or by the exercise of the highest degree of care could have seen, the perilous position of plaintiff while he was crossing the street in time to have stopped his taxicab or slowed it down so as not to have run into plaintiff; and (5) that he failed to stop his cab in time to avoid striking plaintiff, and carelessly and negligently ran into him.
Defendant's answer was a general denial.
At the conclusion of his case, plaintiff introduced in evidence two ordinances of the City of St. Louis, the same being Sections 2483 and 2496 of the Revised Code of St. Louis, 1936.
Section 2483 provides that upon all streets, except upon one-way streets, the operator of a vehicle shall drive the same upon the right half of the street and the operator of a slow moving vehicle shall drive the same as close as possible to the right-hand edge or curb of the street unless it is impracticable to travel on such side of the street and except when overtaking and passing another vehicle subject to the limitations applicable by law in overtaking and passing.
Section 2496 provides that every person operating a motor vehicle on the streets of the city shall operate or drive the same in a careful and prudent manner, and at a rate of speed so as not to endanger the property of another or the life or limb of any person.
Defendant first complains of the court's refusal of its request for a directed verdict at the close of the entire case.
In support of its point, it argues, first, that plaintiff's evidence respecting the manner in which his injury was received was at variance with physical facts; second, that there was no negligence shown on the part of the driver of the cab; and third, that plaintiff's own evidence convicted him of contributory negligence as a matter of law.
We see no merit whatever to the suggestion that plaintiff's account of how his injury was received was so wholly at variance with physical facts as to have deprived it of all probative force.
Defendant's contention is that if plaintiff was struck at all, which defendant's evidence tended to deny, he would have been bound to have sustained some contact with the taxicab other than merely having his left foot run over by the right rear wheel. In other words, defendant claims that if he was injured by the taxicab backing into him, he would necessarily have been struck by the fender or else by some part of the rear of the cab; and that his evidence is therefore unbelievable when it shows no other contact than that between his foot and the right rear wheel.
Conceding that the fender overhangs the wheel and that the rear of an automobile extends beyond the wheel, where defendant falls into error is in failing to take into account that plaintiff was walking towards the path of the taxicab, and that he had just stepped forward with his left foot when the right rear wheel of the taxicab passed over it. In this position on the street, the rear end of the taxicab might very well have passed directly in front of him while his body was still a matter of inches in the clear; and with his left leg extended forward in the act of stepping towards the taxicab, it is not at all impossible that the wheel might have run over the end of his foot without any part of his body coming in contact with the fender. Incidentally, defendant's own medical evidence corroborated that for plaintiff in showing a fracture of the second toe; and the court would have been clearly unwarranted in refusing to submit the case upon the ground that plaintiff's version of how the accident occurred was inherently contrary to physical facts.
Nor is defendant to be upheld in its contention that there was no evidence of actionable negligence on the part of the driver of the cab.
In undertaking to back his automobile at a place where the presence of other persons may be anticipated, it is the driver's duty, both before he begins to back as well as while he is in the act of backing, to keep a lookout towards the rear, and also to give a signal of his intention when any reasonable necessity for a warning exists. Shamp v. Lambert, 142 Mo.App. 567, 121 S.W. 770; Kilcoyne v. Metz, Mo.App., 258 S.W. 4; 42 C.J. 935.
In the case at bar, the evidence not only showed that the driver failed to see plaintiff, which warranted the inference that he had not looked back towards the curb from which plaintiff was starting his course across the street, but also that he gave no warning of his intention to back his cab and park it in the space alongside the curb. The evidence indicates that Jefferson Avenue is a busy thoroughfare at the point of the accident; and the jury was entitled to find from all the attendant circumstances that if the driver had looked to the rear as he backed in at an angle from off of the streetcar tracks, he could have seen plaintiff stepping down from the curb as he prepared to cross the street, so as either to have stopped the cab or else have warned plaintiff of its approach before he took the two steps forward to the point in the street which he had reached when the accident occurred. As it was, the cab was stopped immediately after running over plaintiff's foot; and in the light of all the facts in the case, the question of whether the driver was to be charged with negligence was one for the jury to determine.
The question of plaintiff's contributory negligence would seem to be purely an afterthought on defendant's part, since it pleaded no such defense in the answer which it filed. However it is none the less entitled to urge on this appeal that plaintiff's own evidence convicted him of contributory...
To continue reading
Request your trial
-
Phillips v. Stockman
... ... Taksel, Mo.App., 345 S.W.2d 385, 388; Hampton v. Raines, supra, 334 S.W.2d loc. cit. 378(6, 7); Hicks v. De Luxe ... ...
-
Hampton v. Raines
...are essential to make the plaintiff's case, and it can neither ignore nor assume the existence of any such fact. Hicks v. De Luxe Cab Co., Mo.App., 189 S.W.2d 152, 156; Rayburn v. Fricke, Mo.App., 243 S.W.2d 768; Fitzpatrick v. St. Louis-San Francisco Railway Co., Mo., 300 S.W.2d 490; Dahle......
-
Snyder v. Hedges
... ... McCloud v. Saling, Mo.App., 259 S.W.2d 699, 701(3, 4); Hicks v. De Luxe Cab Co., Mo.App., 189 S.W.2d 152, 154(2, 3); Shamp v. Lambert, 142 Mo.App. 567, 571-572, 121 S.W. 770, 772(1). Under the testimony, the ... ...
-
Burris v. Kansas City Public Service Co.
...that were true, it would have destroyed plaintiff's cause of action, and nothing would have remained for submission.' Hicks v. De Luxe Cab Co., Mo.App., 189 S.W.2d 152, 154, and cases Defendant contends that plaintiff's own testimony shows that he violated sec. 8385(b), R.S.Mo.1939, Mo.R.S.......