Highfill v. Wells

• Decision Date: 02 March 1929
• Docket Number: 27607
• Citation: 16 S.W.2d 100
• Parties: HIGHFILL v. WELLS
• Court: Missouri Supreme Court

16 S.W.2d 100

HIGHFILL v. WELLS

No. 27607

Supreme Court of Missouri, Second Division

March 2, 1929

Rehearing Overruled April 5, 1929.

T. E Francis and B. G. Carpenter, both of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

OPINION

HENWOOD, C.

This is a suit in which respondent (plaintiff below) seeks the recovery of $ 15,000 for personal injuries and damages to his automobile, resulting from a collision with a street car operated by appellant (defendant below) in the city of St. Louis. The trial court sustained a demurrer to the evidence, thereby forcing an involuntary nonsuit, but, later, sustained plaintiff's motion to set aside the nonsuit, and defendant appealed.

The petition contains three specifications of negligence: First, the operation of the street car at a high and dangerous rate of speed; second, the failure to give timely warning of the approach of the street car; and, third, the violation of the humanitarian rule. The answer is a general denial, coupled with a plea of contributory negligence. The reply is a general denial of the affirmative allegations of the answer.

The collision occurred near the middle of the intersection of McNair avenue and Arsenal street, between 4 and 5 o'clock in the afternoon of March 8, 1925. McNair avenue extends north and south, and Arsenal street east and west. At the intersection, both are 36 feet in width, from curb to curb. Along the center of Arsenal street is a street car track used by defendant's west-bound street cars. The north rail of the track is 16 feet from the north curb line, and 26 feet from the north building line, of Arsenal street. McNair avenue does not extend south of Arsenal street, there being a park immediately south of the intersection. Plaintiff was driving south on the west side of McNair avenue in his automobile, a Ford coupe, as he approached the intersection. Mrs. Rae Voelker was with him, sitting on the right side of the Ford coupe. They were en route to the home of one of Mrs. Voelker's friends on Wyoming street, south of the park. They intended to drive east on Arsenal street to the next street extending south. Plaintiff stopped his automobile on McNair avenue at the north building line of Arsenal street, and, from there, saw the street car approaching from the east on Arsenal street, and 'about a half a block away.' He had driven over this intersection 'several times' previously. He testified that he did not observe, and could not judge, the speed of the street car at that time, but 'supposed it was going the ordinary gait' of street cars in St. Louis, 'about fifteen miles an hour.' He further testified: 'I knew it was far enough away -- I had crossed many street cars and I had plenty of time to get across if it was going at an ordinary speed.' As he started across the intersection, he looked west and did not see 'any traffic' coming from that direction; 'bore a little to the left,' or east, and was 'about three feet' from the north rail of the street car track before he 'looked again to see where this car (the street car) from the east was.' As to his second observation of the street car, he said: 'I was not able to judge its rate of speed; I seen it was coming at an awful gait. It was not donging the bell or anything. I saw I had to do something to get out of the way, and it got so close to me I seen there had to be something done and I turned my car to the left and gave it gas as quick as I could -- I done the first thing that I thought was best -- so it got me anyway.' The front end of the street car, on the right side, collided with the front end of the automobile, on the right side, causing the injuries to plaintiff and the damages to his automobile herein complained of. Plaintiff further said that, when he observed the street car the second time and started to turn his automobile to the left, in his effort to avoid the collision, the street car was from 20 to 30 feet away and 'going at a high speed, an unordinary gait, much faster than they usually run'; that his automobile never did reach the street car track; that he drove his automobile across the intersection at a speed of about 5 miles per hour, and at a speed of about 7 or 8 miles per hour, when he started to turn to the left, immediately before the collision; and that he can stop his automobile within a distance of 5 feet or less, when it is running at a speed of five miles per hour.

Mrs. Voelker testified that plaintiff stopped the automobile at the north building line of Arsenal street, and she 'was looking straight ahead'; that he 'started off again,' but she was looking around and did not see, nor know, what happened until something struck the automobile; and that she did not hear any street car bell before the collision occurred.

John C. Amend witnessed the collision while standing on the northwest corner of the intersection. He saw plaintiff stop the automobile at the west side of the intersection, and then start across Arsenal street, turning or angling toward the northeast. At that time, he also saw the street car coming west, about 150 feet away. He said the street car was running about 30 miles per hour, and the automobile about 7 or 8 miles per hour; and that plaintiff 'tried to get away from the street car, his right wheel was turning off the near track -- off the north track -- his wheel was over that rail and he turned in when the street car was about fifteen feet away from him.' He did not hear any street car bell nor 'the application of the brakes' on the street car before the collision. He further said that the collision occurred 'about a foot east of the middle of the street,' and that, when the street car stopped, the front end was 'about even' with the west line of the intersection.

E. W. Briner, another witness for plaintiff, testified that he saw the collision, while walking south on the west side of McNair avenue, a short distance north of the intersection. He said he saw the automobile stop at the north building line of Arsenal street, and start across the intersection at a speed of about 6 miles per hour; and, at the same time, he saw the street car, 'about a half a block away,' coming west at a speed of about 25 miles per hour; and he did not hear 'any gong sounded.' This witness further testified that the collision occurred 'in the center of the street,' that the street car was going at the rate of 25 miles per hour when it hit the automobile, and he insisted, on direct examination, and also on cross-examination, that 'the street car stopped dead in the center of the street, and did not move an inch after it hit the automobile.'

The sole question for our consideration is whether the plaintiff made a case for the jury under the pleadings and the evidence adduced.

I. Primary...