Jedlicka v. Shackelford

• Decision Date: 03 March 1925
• Docket Number: No. 18929.,18929.
• Parties: JEDLICKA v. SHACKELFORD et ux.
• Court: Missouri Court of Appeals

270 S.W. 125

JEDLICKA v. SHACKELFORD et ux.

No. 18929.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Elizabeth Jedlicka against Dr. H. H. Shackelford and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

John T. Sluggett, Jr., and Edward J. Houlihan, both of St. Louis, for appellants.

Foristel, Mudd, Hezel & Habenicht and F. W. Schwarz, all of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages for personal injuries. , Plaintiff recovered a judgment and defendants have appealed. The accident occurred at Montana and Grand avenues, public streets in this city. Plaintiff was struck and run over by an automobile owned by defendant H. H. Shackelford and driven by defendant Helen Shackelford.

Grand avenue runs north and south at this point and is 45 feet wide. Montana avenue is 35 feet wide and intersects Grand avenue with an offset. This accident occurred at Montana avenue running east of Grand avenue. On the west of Grand avenue, Montana avenue is located about 75 feet south, so that the north line of Montana avenue west of Grand avenue is 75 feet from the south line, and 110 feet from the north line of Montana avenue east of Grand avenue.

The petition counts on 10 assignments of negligence. The case was submitted to the jury, however, on but two: First, that the automobile was negligently driven at an excessive and dangerous rate of speed under the circumstances shown in the evidence; and, secondly, that the defendants violated the.humanitarian rule. The record is voluminous, containing more than 350 printed pages. A succinct statement of the case will be attempted.

Plaintiff, then 68 years of age, on the night of June 22, 1922, alighted from a southbound street car on Grand avenue. She was accompanied by her daughter, her daughter's husband, and their three children. The street car stopped at a point on the west side of Grand avenue about 10 feet south of the north line of Montana avenue, which avenue led into Grand avenue from the east. The passengers were discharged through a center door of the street car at a point about 6 feet north of the north curb line of Montana avenue (east). Grand avenue is laid with both north and south bound street car rails. When plaintiff and her party alighted, two or three other passengers also left the car. The daughter, Mrs. Bessie Schmid, and her husband and their children walked to the west curb of Grand avenue to allow a southbound automobile to pass before they attempted to cross Grand avenue to the east. Plaintiff and the two or three other passengers waited out near the south-bound car rails, and as soon as the street car passed they proceeded to cross over to the east.

Adolph B. Schmid, plaintiff's son-in-law, testified that as he started across the street he saw two automobiles approaching from the south, one automobile being ahead of defendants' car. He says that defendants' car at that time was about 100 feet south of where he was walking and also from the line where plaintiff was walking at the time. He testified that plaintiff and the other persons were crossing at the usual crossing place for passengers from south-bound street cars on Grand avenue; ' that plaintiff was crossing within a few feet of the north curb line of Montana avenue (east); that, when he first saw the automobile 100 feet south of plaintiff, the first automobile was 60 or 70 feet ahead of the machine driven by Helen Shackelford, but that, when the Shackelford machine passed over Montana avenue (east), the automobiles were about 30 or 40 feet apart. This was about the time that plaintiff was struck. From the testimony of this and other witnesses, it appears that Mrs. Shackelford was driving her machine with the wheels astraddle of the east rail of the north-bound tracks, and, from the time she was 100 feet from the crossing until the accident, she was operating the machine at from 22 to 25 miles an hour, without sounding a warning or slackening her speed or changing the course of the machine. Schmid further testified that he was 15 feet to the rear of plaintiff as they were crossing the street; that the unnamed passengers crossed over the street immediately behind the first automobile ; that plaintiff, immediately behind them, attempted to cross likewise and was struck just as she had taken one step, or about 3 feet, east of the east rail of the north-bound track, the right front wheel of the automobile passing over her body. The machine was not stopped until it had gone about 70 feet beyond the point of collision.

It is the testimony of witnesses for plaintiff that she was walking eastwardly "as persons ordinarily cross the street," and had very nearly cleared the automobile when she was struck. The street corner and the immediate vicinity were well lighted, and the lamps on defendants' automobile were burning. It appears that defendants' machine was traveling faster than the machine preceding it, so that accounts for the machines being closer as they passed over Montana avenue.

It is difficult to tell from the record just where in the street plaintiff was at the time defendants' automobile was 100 feet south of the path where she was crossing, though it seems that she was in the space between the north and south bound tracks. From the testimony of Schmid, it appears that he had left the west curb and was near the south-bound track when he first saw defendants' car 100 feet south, and that plaintiff was then about 15 feet, given as an estimation, ahead of him, so that plaintiff, at that time, was approaching and very close to the north-bound tracks, and the other passengers who had alighted from the same street car were in or beyond the north-bound tracks. When asked on cross-examination where the defendants' car was while plaintiff was between the rails of the north-bound tracks, he answered : "Right on top of her." Asked if 3 or 4 feet is correct, he said : "Yes." The questions and answers contained in the record disclose that witness meant as she was crossing the east rail and instantly before being struck.

Mrs. Bessie Schmid, daughter of the plaintiff, testified that plaintiff, prior to the accident, had been in good health. And, as to the circumstances immediately surrounding the accident, her testimony was very similar to that of her husband, Adolph Schmid. She stated that, as she and her husband and their children started across Grand avenue, plaintiff was about 15 feet ahead of them, walking in an easterly direction at the regular place provided for pedestrians. At this time she says defendants' car was about 100 feet south of the path where they were walking, and that the automobile was being driven with one wheel in the north-bound street car tracks and the other to the east of same ; that the machine did not change its course nor slacken its speed ; and that no signal was given. As to the direct line in which plaintiff was walking from Grand avenue to Montana avenue, she testified that plaintiff was about even with the north pavement of Montana avenue, and that plaintiff was struck just as she was crossing the last or east rail. She testified that, when she first saw the Shackelford machine, then 100 feet south, she had already started to cross the street, and that her mother was about 15 feet ahead of her, but she was unable to locate plaintiff's position with reference to the different rails in the street.

William Sinn, the motorman of the northbound street car immediately following defendants' automobile, testified that he saw the accident, and that Mrs. Shackelford was driving her machine in the north-bound tracks ahead of him ; that the street car was 125 feet behind the automobile, and that in his judgment the machine was being operated at about 20 miles an hour ; and that the course of the machine did not change while same was approaching Montana avenue. He testified he was unable to see the actions of plaintiff before the accident, but that she was struck while she was in the north-bound rails.

Joseph P. Hennessey, a witness for plaintiff, and an expert on the operation of an automobile of the make driven by Mrs. Shackelford on this occasion, testified that, under conditions existing at the time of this accident at the place in question, an automobile such as this could have been stopped, if traveling at the rate of 25 miles an hour, "in 20 feet if you really had to and could use your emergency brake * * * but, to take your time and plenty of time with safety to everybody, you could do it easily in 20 feet. In traveling 18 miles an hour the machine could be stopped in 16 feet, and in traveling at 10 miles an hour the machine could have been stopped in 8½ feet."

Medical testimony was introduced to the effect that the plaintiff was severely and permanently injured. Aside from the injuries to the head, concussion of the brain, broken ribs, and other bodily cuts and bruises, there was testimony that as the result of the injuries plaintiff's mind has been affected, and that her memory has become so impaired that she was often unable to carry on an intelligent conversation, and that this injury is permanent. Plaintiff was unable to appear at the trial and testify in her, own behalf. There is evidence also that she had been confined in different institutions because of her mental condition.

Plaintiff introduced an ordinance of the city of St. Louis limiting automobile speed to 10 miles per hour in this section of the city ; also an ordinance of the city providing that drivers of motor vehicles must sound a signal when approaching a street crossing.

The testimony on the part of defendants strongly contradicts plaintiff's case; witnesses testifying that plaintiff became confused by passing traffic when crossing the street, and that she stepped into the path of defendant's machine as same was within a few feet of her....