Hoodenpyle v. Wells

• Decision Date: 06 November 1928
• Docket Number: No. 20444.,20444.
• Parties: HOODENPYLE v. WELLS.
• Court: Missouri Court of Appeals

10 S.W.2d 331

HOODENPYLE v. WELLS.

No. 20444.

St. Louis Court of Appeals. Missouri.

November 6, 1928.

Rehearing Denied November 20, 1928.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by A. A. Hoodenpyle against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis, Eugene Blodgett, and B. G. Carpenter, all of St. Louis, for appellant.

Wilbur C. Schwartz and Charles E. Morrow, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, sustained by plaintiff on June 17, 1923, when he was struck by a street car, operated by the agents and servants of defendant. The case was tried to a jury, resulting in the return of a verdict for plaintiff in the sum of $7,500; and, from the judgment rendered thereon, defendant has duly appealed.

The case was here on a prior appeal, and may be found reported in 291 S. W. 520. At the first trial, plaintiff predicated his sole hope for a recovery on certain assignments of primary negligence, and obtained a judgment in the circuit court, which was reversed by us by reason of the fact that his contributory negligence appeared as a matter of law. We remanded the case, however, on account of the inclusion in the record of testimony tending to establish a right of recovery under the humanitarian doctrine; and, in the second trial, the negligence pleaded and submitted was the failure of the motorman to have stopped his car, or to have checked its speed, so as to have avoided striking and injuring plaintiff, after the latter's position of imminent peril was, or should have been, observable to him. To such charge, defendant filed an answer in the form of a general denial, coupled with a plea of contributory negligence, which latter defense is of no further consequence in the determination of the case.

Plaintiff's misfortune was suffered at 10:30 o'clock at night, at the intersection of Manchester and Sulphur avenues, in the city of St. Louis, the former street running eastwardly and westwardly, and the latter, northwardly and southwardly. The car tracks of defendant are situated on the south side of Manchester avenue, the south track being used for east-bound cars, and the north track for west-bound cars, while the driveway for vehicles of all sorts lies to the north of both of such tracks.

The burden of defendant's complaint is that the requested peremptory instruction in the nature of a demurrer to the evidence should have been given, upon the assumption that the testimony fell short of making a case for submission to the jury of negligence under the humanitarian doctrine. Obviously, the determination of this point requires a careful review of the evidence, the material portions of which we shall now have occasion to discuss in considerable detail, giving to plaintiff, as we must, the benefit of the most favorable testimony adduced in his behalf, as well as of all reasonable inferences of fact deducible therefrom.

Plaintiff, a man approximately 70 years of age, was in the act of crossing Manchester avenue from north to south, with the intention of boarding an east-bound car. His movements, as he crossed that portion of the roadway reserved for vehicular traffic, are of unimportance on the sole issue before us; and we are first concerned with his conduct when he reached a point two feet north of the north rail of the west-bound track, where he paused, and looked in both directions for approaching cars. The fact that he found nothing about the situation to cause him alarm is of no moment, with contributory negligence out of the case; and it will suffice to say that, so far as plaintiff himself could recall, he did not again glance towards the west, but instead continued directly onward until he was struck.

One of his witnesses, however, Frank Stroud by name, who was standing, in company with one Henry Garrison, on the north side of Manchester avenue, 30 feet east of Sulphur avenue testified that plaintiff looked for the last time just as he had crossed the west-bound track. The exact statement of the witness, which comprehends the situation with reference to plaintiff's entry into the danger zone, was as follows:

"He walks on over to about a couple of steps from the north rail of the west-bound track, and he looked again or raised his head, and then he takes another step or two, and he looks again, and he is across the west-bound track, and he looks, and then he goes on across, or continued to go across, and the car struck him."

The witnesses are agreed that, when plaintiff stepped upon the east-bound track, the approaching car was yet 30 feet away, and that, at the moment he was struck, he was 1 or 2 feet from the south rail of such track. He was carried about 30 feet by the force of the impact before he was thrown to the side of the track; and, when the car was finally brought to a stop, with its rear end 90 to 100 feet east of the point of collision, the motorman returned and made inquiry of those who had gathered in regard to what object he had hit.

Other material evidence disclosed that plaintiff was walking at the rate of 2 miles an hour, while the car was running at a speed of 10 or 12 miles an hour; that the headlight on the car was burning; that the track was straight, with no obstruction to the vision, between Sulphur avenue and the block to the west; that the night was clear and dry; that each track was approximately 5 feet in width, with an equal interval between the two tracks; that the speed of the car was not slackened between the time it was...