Kalbfell v. Wells

• Decision Date: 03 May 1932
• Docket Number: No. 21520.,21520.
• Citation: 49 S.W.2d 247
• Parties: KALBFELL v. WELLS et al.
• Court: Missouri Court of Appeals

49 S.W.2d 247

KALBFELL v. WELLS et al.

No. 21520.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

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

"Not to be officially published."

Suit by Charles F. Kalbfell against Rolla Wells, receiver of the United Railways Company of St. Louis, and another. Judgment for plaintiff, and defendants appeal.

Reversed.

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

C. O. Inman and Rassieur, Long & Yawitz, all of St. Louis, for respondent.

NIPPER, J.

This suit was brought by plaintiff against the defendants to recover damages for personal injury and property damage, resulting from a collision between plaintiff's motor-truck and appellants' street car. The accident occurred on June 2, 1927, at the intersection of McKnight road, in St. Louis county, and the Clayton car tracks of defendants at said point.

The petition counts on the following assignments of negligence: (1) That the motorman in charge of said street car saw the plaintiff or his automobile truck, or by the exercise of due care would have seen them, in a position of imminent danger of being struck by defendants' car, in time, by the exercise of ordinary care, to have stopped the street car, checked its speed, or given timely warning of its approach, and thereby have avoided the injury to plaintiff and damage to his automobile; (2) negligently operating said street car at the time and place in question at a high and dangerous rate of speed; (3) that the motorman in charge of said street car failed to sound a warning as the car approached said crossing, and negligently failed to slacken the speed of said street car and keep it under such control that he could stop it, or check its speed, and avoid collisions and injuries to persons who are apt to be on or crossing said track; (4) that the view of the tracks and street car approaching said road in an easterly direction was greatly obscured and obstructed on account of embankments, hedges, trees, and other foliage, and defendant negligently failed to place a cross-sign or warning at or near said crossing or to have a crossing bell or some means whereby persons traveling along and on said road would be advised and warned of the approach of street cars on defendants' tracks.

The answer was a general denial, coupled with a plea of contributory negligence, in which it is alleged that plaintiff's injuries, if any, were caused by his own carelessness and negligence, in that he drove toward a street car track and into a moving street car, when he saw and heard, or by the exercise of ordinary care could have seen and heard, the street car in time to have remained away from the track and have avoided the collision.

The evidence discloses that McKnight road, at the time and place in controversy, was an open and public highway in St. Louis county, Mo., extending north and south, and at the place in question was paved with macadam, the paved portion being about eighteen feet wide. Defendants maintained a single line of railway track crossing McKnight road east and west over which it operated both eastbound and west-bound cars. Immediately north of defendants' track and east of McKnight road there was a large amount of trees, bushes, and heavy foliage, which completely obscured the view of one driving an automobile southwardly on McKnight road, until the front of the automobile reached a point about two feet from the north rail of defendants' track. This same foliage, of course, obscured south-bound vehicles from the view of the motorman of a west-bound car.

On the day in question plaintiff's truck, which he was driving southwardly on McKnight road, crossing over defendants' tracks, was struck by defendants' west-bound car, the point of impact being on the left side of the truck, at the driver's cab, shoving it westwardly along the track for a distance of thirty or thirty-five feet.

The truck was a Pierce Arrow, and had been purchased by plaintiff about three and one-half years before the accident, at a cost of $6,100. As a result of this damage to the truck, it required a new frame, new transmission case, new clutch housing, new steering column, repairing of the front springs, front axle, cab, and other parts. It was shown that the reasonable market value of the truck immediately prior to the collision was approximately $2,500; that immediately after the collision, in its damaged condition, it was worth from $150 to $200. There was testimony tending to show that the repairing of the truck, with the subsequent tightening up and replacement of parts, increased its value from $300 to $500 above its value immediately after the collision.

The repairing of the truck required about two months' time, during which time the plaintiff rented another truck to carry on his business, at a cost of $407. The reason the truck could not be repaired in a shorter space of time was largely due to the fact that the local agency did not have the necessary parts, and they had to be ordered from the factory in New York.

As plaintiff approached the car tracks he said he was driving between ten and fifteen miles per hour, because the truck did not go more than fifteen miles per hour, and he kept his hand on the emergency brake. When he was seven or eight feet from the car track, he looked to the east, but could see nothing coming. He also testified that he listened for a whistle or some sound or signal, which would indicate the approach of a street car, but had heard none. He then proceeded onto the track where he was struck, and, as stated before, he could not see a street car coming, on account of this dense foliage, until he was within two feet of the track. He said when he was within about two feet of the track he saw the street car coming about thirty or forty feet east of the point of collision, traveling thirty-five or forty miles per hour.

The evidence as offered on the part of the plaintiff was to the effect that, when the street cars approached this crossing, it was the custom to give a warning, or come to a stop, before crossing this intersection. Plaintiff testified that he knew of this custom.

In the collision plaintiff was thrown from and under his truck and onto the rail of the street car track, and sustained personal injuries, consisting of lacerations and abrasions of the face and left side of the neck, contusions and lacerations of the nose, a contusion of the right hip, and loosening of some teeth. The lacerations required eight surgical sutures, six on the face and two on...