Karte v. J. R. Brockman Mfg. Co.

Citation247 S.W. 417
Decision Date30 December 1922
Docket NumberNo. 22381.,22381.
PartiesKARTE v. J. R. BROCKMAN MFG. CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by Martha Karte against the J. R. Brockman Manufacturing Company. Judgment for Plaintiff, and defendant appeals. Affirmed.

Jones, Hooker, Sullivan & Angert and. John T. Sluggett, Jr., all of St. Louis, for appellant.

Foristel & Eagleton, of St. Louis, for respondent.

WOODSON, C. J.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendant to recover $10,000 damages for the alleged negligence in killing her husband, and $300 laid out and expended by her for the funeral expenses of her said deceased husband. The case was tried before the court and jury, which resulted in a verdict and judgment for her in the sum of $8,250, and after: unsuccessfully moving for a new trial, the defendant duly appealed the cause to this court.

There is no point made regarding the sufficiency of the pleadings, except as will hereafter be mentioned, and for that reason they will be put aside, except to say that they are sufficiently comprehensive to cover all the questions here presented for determination. Counsel for the respective parties have made a fair statement of the case as required by the rules of this court, but we largely adopt that of counsel for plaintiff, because it is fuller and brings out more clearly the facts than does that of the defendant. The evidence is substantially as follows:

The injury occurred on the intersection of Branch street ant. Thirteenth street In the city of St. Louis. The former ran east and west, and the latter north and south. The deceased was riding a motorcycle and traveling east on the south side of Branch street, and the automobile which struck him was going south on Thirteenth street. The deceased's motorcycle was about 2 feet from the south curb line of Branch, and the automobile was following down the single street car track in Thirteenth street, with the left wheels between the tracks. The plaintiff, Martha Karte, was not a witness to the accident, and testified merely to her marriage, widowhood, and support by her deceased husband; that he was 31 years of age, and she 28; that prior to his injury he was a healthy man, strong, and earning $23.50 a week; that he gave all of his wages to plaintiff for use, and they were used by her in their family living and incidental outlays; that since the death of her husband she has made her own living, which, as she said, was very bad, because she had a physical affliction in her eyes—can't see very well; that her husband lingered after the accident., until May 2d, or about 6 days, when he died, and that she buried him; that the burial expenses were $300, which she paid.

The witnesses to the accident on behalf of plaintiff were, first, Theodore J. Mertens, a boy of 13 years, substance of whose testimony was:

That he lived with his parents at the northwest corner of Branch street and. Thirteenth street. His father was in the ice and coal business there. At and just before the accident he was standing on the north side of Branch street, leaning against a lamp post at the corner of the alley. That this lamp post was on the north side of Branch street, and about 120 feet west of the west line of Thirteenth street. That he saw Martin Karte (whom he did not at the time know) coming east along the south side, and about 2 feet north of the south curb of Branch street noticed him coming from about Fourteenth street. He saw him until he got to and was in the act of crossing Thirteenth street. He proceeded straight forward, looking south when he got to Thirteenth street, and then to the east ahead of him. He was traveling from 8 to 10 miles per hour. The witness had previously qualified to testify to speed, giving his experience with automobiles, and their movement as to miles per hour. When the motorcycle got to about the east rail of the car tracks on Thirteenth street, the defendant's automobile (sometimes referred to in the evidence as a truck) came into the intersection, from the north, and traveling south on Thirteenth, street at a very high rate of speed, estimated by the witness at from 28 to 30 miles per hour. The witness knew the automobile being accustomed to seeing it pass that way, and that it had on its side J. R. Brockman Manufacturing Company.

His father's house and office were on the northwest corner of Thirteenth and Branch streets. That the sidewalk there was about 10 or 12 feet in width, and from where he stood at the lamp post he could not see far into Thirteenth street to the north, but that when the automobile, coming south came into view and was about passing the north curb line of Branch street, the motorcycle was then entering upon the car tracks and passing over the east rail. That the automobile never slackened, but slightly increased its speed, after coming into sight until it struck the motorcycle. That when it struck the motorcycle the latter was crossing the east rail of the car tracks, and it seemed to him the the bumper on the east or left-hand side of the automobile struck the motorcycle near the latter's hind wheel or where the driver's leg was. That the automobile did not swerve or change its course as it came south, but was running all the time along the car tracks, with its west wheel about a foot or foot and a half east of the west rail, until it struck the motorcycle. It then swerved somewhat to the west and stopped on Thirteenth street, near the curb, and with the rear part of the motorcycle at or near the south curb line of Branch street.

Witness Blaine, called by the plaintiff, in all material respects substantially testified as did the boy, Mertens, except that he thought the automobile was traveling about 25 miles an hour, and that the motorcycle was going from 10 to 12 miles an hour. Blaine was standing at a water fountain on the north side of Branch street, which he says was about 30 feat west of Thirteenth street. He testified that the motorcycle ran eastwardly along the south side of Branch street, about 3 or 4 feet from the curb, and that when he got to Thirteenth street, and when his front wheel was just about' approaching the car tracks, he observed the automobile come out from behind the building at the northwest corner of Thirteenth street and Branch street, coming south on the west side of the street, straddling the west rail of the car tracks, and that at that time the motorcycle was about 30 feet in front of him. He heard no horn or signal from the automobile. As the automobile came into the intersection and passed the north curb line of Branch street, the motorcycle, was directly in front of him; the front wheel crossing the east rail of the street car track. The automobile neither slackened its speed nor changed its course until it hit the motorcycle. The motorcycle, when hit, was crossing the east rail of the car tracks. The hind wheel or hind part of the motorcycle was crossing the east rail. That the bumper on the automobile on the left hand side struck the motorcycle just about the back wheel. That there was nothing in the street to prevent the automobile from turning to the west so as to avoid striking the motorcycle. That after the automobile struck the motorcycle the driver of the former applied his brakes, throwed his brakes, and ran right into the post and hit the iron post, and then he straightened out and pulled up to the side on Thirteenth street. As he hit the motorcycle he turned to the west so as to hit the iron post. The iron post is situated on the west side of Thirteenth street about 12 feet south from the sidewalk line of Branch street about 12 or 15 feet south of the curb. When the automobile struck the lamp post, he then pulled onto the side, straightened his machine out towards the south. At that time the motorcycle and Karte were east of the place of collision about 20 feet, and south 2 or 3 feet. Karte's left leg "was just practically like it was chopped off with an ax; I think it was only the skin holding it, and the blood was coming out just like you would pump it out of a cistern." This witness also testified that he observed the name "J. R. Brockman Manufacturing Company" on the truck.

Mrs. Mertens, a witness called by the plaintiff, also testified: That the automobile after the collision stopped 10 feet south of Branch street. That she first observed the automobile coming from the north on Thirteenth street, about a foot south of the north curb line of Branch street. That it was going about 30 miles an hour, and she knew there would be a collision, and put her hands over her face. This witness testified that she was accustomed to seeing this automobile truck passing over the same route, and that he always went very fast.

Plaintiff offered the deposition of Dallwitz, the truck driver appeared before the commissioner with Mr. Sluggett as the defendant's attorney, January 3, 1920 (the accident had taken place, April 6, 1919). The witness refused to testify on the ground that it might incriminate him. Mr. McMahon took the deposition on behalf of plaintiff, and in course of the deposition and the colloquy between commissioner and counsel the following occured:

"Mr. Sluggett: What is your reason for refusing to answer this question?

"The Witness: It is liable to incriminate me and get some words in there and find me guilty.

"Mr. Sluggett: Guilty of a crime? A. Guilty of a crime."

And again:

"Q. And were you in charge of the truck on that date at that time? "Mr.

"Mr. Sluggett: I object to that; that might tend to incriminate him.

"The Commissioner: I sustain the objection.

"The Witness: I object on the ground it might tend to incriminate me," At the opening of the deposition the witness was asked by Mr. McMahon:

"Q. By whom are you employed?

"The Witness: T. R. Brockman."

And again:

"Q. On the 26th day of ...

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