Irgang v. Tieman Coal & Material Co., 21701.

• Decision Date: 08 March 1932
• Docket Number: No. 21701.,21701.
• Citation: 46 S.W.2d 919
• Court: Missouri Court of Appeals
• Parties: IRGANG v. TIEMAN COAL & MATERIAL CO.

46 S.W.2d 919

IRGANG v. TIEMAN COAL & MATERIAL CO.

No. 21701.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by James Irgang, an infant, by Sebastian Irgang, his next friend, against the Tieman Coal & Material Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Homer J. Fitzpatrick and Allen, Moser & Marsalek, all of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for personal injuries sustained by James Irgang, who brings this suit by his father, as next friend, against the Tieman Coal & Material Company. Plaintiff was twelve years old at the time of the accident, and was living with his father.

The evidence discloses that at the time in question plaintiff was riding a bicycle southwestwardly on Gravois avenue between Gustine avenue and Phillips street, in the city of St. Louis, and had a boy friend on the bicycle with him when the accident happened. Plaintiff sustained injuries, which we will refer to later in the opinion.

Plaintiff, who was fifteen years old at the time of the trial, testified that, at the time of the accident, he was going down grade on Gravois avenue, southwestwardly, and some four or five feet south of the north curb line. While so riding his bicycle, he heard the rumbling of a motor behind him. He looked back and saw a truck about two feet in back of him. He then turned his face toward the front again, and in a few seconds the truck hit him. He said he felt the blow of the collision, and that it came from the rear. This threw him off his course, and he went to the curb, and did not know what happened after that.

On cross-examination, he said he did not see what struck his bicycle, and did not know of his own knowledge whether or not the truck that he saw hit him.

Harvey Koebel, plaintiff's companion on this bicycle ride, testified that he saw the wheel of a truck and heard the noise of a motor just before the accident. He then felt a jar, and that was all he remembered. He said the jar came from the back. The evidence also shows that there was no horn or signal of any kind given by the driver of the truck. He said that prior to the accident he had been looking ahead when he heard the noise of a motor, and the first time he looked back he saw the truck about a hundred feet in back of them, but he did not know what kind of a truck it was, nor what color it was painted. He did not see the truck strike the bicycle, and did not know of his own knowledge whether or not it struck the bicycle. He felt the jar from the rear of the bicycle, but when he saw the wheel of the truck, and was asked where it was at that time, with reference to the bicycle, said: "Right on top of it."

Willis Rankins, a street car motorman, was operating a street car westwardly on Gravois avenue at the time the accident occurred. When the street car was at Gustine or about the top of the hill, the truck was going down hill, a little ahead of the street car. Rankins saw the boy on the bicycle in front of the truck and about fifty feet ahead of the truck. He said the truck was gaining on the bicycle, and as the bicycle and truck continued down the hill the cab of the truck obstructed the witness' view of the bicycle. The truck stopped and the witness then saw the boys piled up with their bicycle at the right-hand curb. The truck was some twelve or fifteen feet beyond the place where the boys were lying when it stopped. He said there were skid marks on the street paving extending back from the rear wheels of the truck a distance of twenty-five or thirty feet. The name on the truck was Tieman Coal & Material Company.

Lawrence Menne, who was riding on the front platform of the street car, said he saw the truck following the bicycle, and gain on it until the truck was about twenty feet from the bicycle, and then the truck obstructed his view of the boys, and, after it had passed, he said he saw the boys and the bicycle lying on the curb. This witness testified that the driver of the truck made the statement at the time of the accident that he was sorry, but it could not be avoided.

The driver of the defendant's truck, Leo Mallet, denied that his truck struck the plaintiff's bicycle. He testified that he was driving down the hill on Gravois avenue at a speed of about ten miles an hour, and saw the boys going down the hill. He stated that the bicycle hit a cobblestone, and the boys were thrown against an iron lamp post.

Edward Miller, testifying on behalf of defendant, stated that he was driving west on Gravois to the rear of the truck and the boys, and saw defendant's truck which was being driven near the car tracks a considerable distance behind the boys on the bicycle. He said he saw the boys fall off the bicycle and into the lamp post, and that at that time the truck was to the rear of the scene of the accident.

Another witness testified that he was walking east on the south sidewalk of Gravois, and saw the defendant's truck coming down the hill some distance behind the plaintiff. He stated that the truck did not hit the boys or the bicycle, and that at the time of the accident the truck was some distance back of them.

There was evidence that the front part of the bicycle suffered the greatest damage. The rear wheel had several spokes out of it and an indentation in it.

After the accident plaintiff was taken to a hospital, where he regained consciousness the following day.

Dr. Backlar, to whose office he was taken immediately after the accident, said that he was unconscious at that time, irrational, and bleeding from nose and ears. The right side of the body was paralyzed, and his tongue was protruding. This condition was described after plaintiff was taken to...