Kaemmerer v. Wells

• Citation: 299 Mo. 249,252 S.W. 730
• Decision Date: 11 June 1923
• Docket Number: No. 23545.,23545.
• Parties: KAEMERER v. WELLS.
• Court: United States State Supreme Court of Missouri

252 S.W. 730

299 Mo. 249

KAEMERER v. WELLS.

No. 23545.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

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

Action by Mathew Kaemmerer against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellant's criticism of plaintiff's instruction No. 3 was that it assumed injuries to plaintiff without requiring the jury to find that plaintiff received such injuries as a result of the collision.

Charles W. Bates, T. E. Francis, A. E. L. Gardner, and Carter, Nortoni & Jones, all of St. Louis, for appellant.

John E. Mooney and George Barnett, both of St. Louis, for respondent.

Statement.

RAILEY, C.

On April 17, 1920, the abovenamed plaintiff commenced this action in the circuit court of St. Louis county, Mo., against Rolla Wells, as receiver of the United Railways Company of St. Louis, a corporation, to recover damages alleged to have been sustained by him while driving an automobile, which came in collision with a street car operated by said defendant. The amended petition, on which the case was tried, charges the defendant with common-law negligence in running its street car, which collided with plaintiff's automobile, at an excessively high and dangerous rate of speed at a place where said street car line crossed a public thoroughfare, during a severe snowstorm, and that said negligence directly caused said collision and injuries to plaintiff.

The defendant in its answer, charged the plaintiff with contributory negligence, which was denied in the reply. The answer admitted that Rolla Wells, as receiver, was operating the street railroad aforesaid at the time of said collision. The location of the accident, and the facts connected therewith, become material, as it is urged the plaintiff should have been nonsuited by the trial court.

The accident occurred about 6:30 to 7 o'clock in the evening of January 8, 1920. The exact directions of the public roads where the accident occurred are not clearly shown, but we think, in a general way, it appears that the Natural Bridge road generally runs east and west. The general direction of Kienlen avenue is northwardly, and it terminates at the intersection with the Natural Bridge road. With a slight jog in the intersection of last-named roads, Kienlen and Jennings road form a continuous road, running practically north and south. The defendant at date of accident was operating a double track between Ferguson and the city of St. Louis. Cars passing west or northwest traveled over the north track, while those going from Ferguson to St. Louis used the opposite track. At the time of plaintiff's injury, he was seated on the left side of the forward seat of a touring car, and was driving same, while en route from his place of business to his home at Pine Lawn, outside of the city, where he resided. Mr. Michael A. Clooney, a stranger to plaintiff, on invitation of the latter, got into plaintiff's automobile and was occupying a rear seat in said car when the accident occurred, just outside the city of St. Louis. One of defendant's cars, traveling east from Ferguson to St. Louis on the south track aforesaid, struck the rear wheel of plaintiff's automobile, on the left-hand side of the foremost seat, where plaintiff was riding and driving at the time.

The evidence tends to show that plaintiff had resided at Pine Lawn, for several years prior to the accident, some two or three blocks from said crossing, and was familiar with the same. The Natural Bridge road was about 60 feet in width and Kienlen avenue about 50 feet in width. There stood at the time of the accident, immediately south and west of the railroad right of way, and north of the Natural Bridge road, a two-story frame building, occupied as a soft drink establishment. The evidence tends to show that the frame building, supra, stood from 10 feet to 14½ feet south of the inbound track. The plaintiff was coming from the south, and going north at time of accident. At the edge of the railway right of way, on the south side of the crossing of Natural Bridge road, and on the east side of Kienlen avenue, there was a small station or shelter house for the accommodation of waiting passengers.

Plaintiff, in his own behalf, testified in substance that he looked in all directions, as he approached the crossing, to see if there was a vehicle or car approaching; that he never heard or saw a car, until she front part of his machine was practically on the track; that when his front wheels were on the track, he looked and saw that the car was only about 75 feet away, and he had no chance to stop; that he put on the power to get across, and the street car hit the rear end of his machine; that before he actually got on the track, he had looked north while he was from 5 to 10 feet from the track. On cross-examination, plaintiff testified that he was traveling between 5 and 8 miles per hour as he approached the track; that there was a deep snow on the ground, and it was very rough; that he had good brakes on his car, and they were in good shape; that on a night of that kind, if the car did not skid, while traveling from 5 to 8 miles per hour it could have been stopped in about 8 feet; that there were no curtains on the car; it was an all-weather top, with isinglass curtains on the sides; that he looked through this isinglass; that it was snowing pretty hard; that he had a regular form of headlight on his car; that the frame building was about 10 feet from the south track; that when standing 10 feet from the south track you can see to the top of the hill about 600 feet; that standing 15 feet south of the track you could possibly see 200 feet west up the track; that he did not think he came to a full stop before being struck; that he slowed down before going over the tracks; that his car skidded when he put his foot on the gas.

Edwin Otto testified in substance that he was in the rest house with seven or eight other people, waiting to take the car that injured plaintiff; that it was snowing; that the car ran by the station 150 to 200 feet; that it was going awfully fast.

Edward Aydelotte testified that he was in the rest house, waiting to take passage on this car that struck plaintiff; that it struck the left hind wheel of plaintiff's car, after it had almost gotten across the track, and it turned the automobile completely around, facing south.

Theodore Boeming testified that he was also at the rest house, and saw the street car before it collided with plaintiff's car; that he was looking straight at it; that it was snowing; that the street car was about 75 feet away when he first saw it; that he saw the automobile, when from 5 to 8 feet of the track; that plaintiff was going about 5 miles per hour and pulled onto the track; that the street car was running about 20 miles per hour, struck the left hind wheel of automobile, and turned it clear around; that the street car did not stop for passengers; that it ran past the station about 175 or 200 feet. On cross-examination, he said the snow was falling rapidly; that the tracks were covered with snow; that plaintiff almost stopped his car, but did not stop.

August Bruegge was at the rest house, and located the scene of the accident as being near the center of Natural Bridge road. He testified that the street car did not stop, at the station, but ran about 175 or 200 feet beyond it; that the street car was going 15 to 20 miles per hour as it went by the station; that there was a heavy snow that night.

The plaintiff, and certain witnesses, testified as to the injuries complained of, which will be considered later.

Defendant's Evidence.

Herbert H. Windt, a civil engineer, testified that he measured the distance from the south track to the frame house on the south and found the distance 14½ feet; that you could see a car from the center line of the crossing about 666 feet, while standing about 17 feet south of the track. On cross-examination, witness testified that the sun was shining when he made his estimates.

T. R. Shaffer testified, In substance, that he was on the street car in question, and that, when his car got within about 75 feet of the crossing, he observed the spot light of a machine coming over Kienlen avenue, and very near turning around the corner, and seemed to keep on coming toward the track; that it seemed to him the car stopped and moved again; that about this time the power of the street car was off, the brakes were applied, and it seemed to him like they were sliding on the rail; that he thought the automobile stopped about 10 feet from the track, and then started up again; that the street car was then about 40 feet away. On cross-examination, witness testified that he was on the front end of the street car with the motorman; that the door between the platform and the car was closed, and the curtain was drawn down; that it was snowing very hard; that he never saw the automobile until they were within 75 feet of it; that the lights on the automobile were lighted; that the street car was traveling about 20 miles per hour, until it got within 75 feet of the automobile, and was going about 15 miles per hour when it struck it; that he could not say whether the street car was going 45 miles an hour; that the street car was bouncing up and down, before it got within 75 feet of the crossing.

Henry C. Hessen testified that he was the conductor in charge of the car which struck plaintiff, and was on the rear platform; that he did not see the accident, but felt the brakes on.

It was conceded that the motorman in charge of the car that struck plaintiff was at the date of trial in Portugal.

The plaintiff's deposition, covering nearly 25 pages, was taken by defendant, and read in evidence by it. We find no substantial difference between plaintiff's evidence, given at the trial, as heretofore set out, and that read from said...