Kent v. Kiel

• Citation: 97 S.W.2d 885
• Decision Date: 10 November 1936
• Docket Number: No. 23976.,23976.
• Parties: KENT v. KIEL.
• Court: Court of Appeal of Missouri (US)

97 S.W.2d 885

KENT v. KIEL.

No. 23976.

St. Louis Court of Appeals. Missouri.

November 10, 1936.

As Modified on Denial of Rehearing November 24, 1936.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be published in State Reports."

Action by James Kent against Henry W. Kiel, receiver of St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

T. E. Francis and S. G. Nipper, both of St. Louis, for appellant.

J. Edward Gragg and Robert L. Aronson, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action for damages for personal injuries sustained by plaintiff on October 13, 1933, when he was struck by one of defendant's street cars. Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $3,200. Judgment was rendered conformably with the verdict, and defendant's appeal to this court has followed in the usual course.

The negligence pleaded and relied upon by plaintiff was both primary and secondary. In the matter of primary negligence, plaintiff counted upon a violation of an ordinance of the city of St. Louis providing that whenever a street car is about to pass another car going in the opposite direction at a point where it is permissible for passengers to alight from or board a car, said passing car shall proceed at a speed of not over three miles an hour, and the motorman shall ring a warning gong or bell. The assignment of secondary negligence involved a charge of negligence under the humanitarian doctrine with respect to the motorman's failure to have stopped his car short of the collision or to have sounded a timely warning of its approach.

The answer was a general denial, coupled with a plea of contributory negligence, in that plaintiff had gone towards a street railway track and towards and in close and dangerous proximity to a moving street car, when he saw and heard, or by the exercise of ordinary care could have seen and heard, the moving street car in time thereafter to have prevented himself from being struck by it.

The accident happened in the vicinity of the intersection of Easton avenue and Grand boulevard, in the city of St. Louis. Defendant has eastbound and westbound cars which run on Easton avenue, and northbound and southbound cars which run on Grand boulevard. The intersection is a busy one for all forms of traffic, to regulate which the city maintains an automatic signal at that point which directs and controls the flow of traffic by the use of the familiar red and green lights.

The time of the accident was around 7 o'clock in the morning. Plaintiff, who was en route from his home to his place of employment, had been a passenger on an eastbound Wellston car on Easton avenue, from which it was necessary that he should alight upon its arrival at Grand boulevard so as to transfer to a southbound car on the latter street.

The regular stopping point for eastbound Wellston cars is at the southwest corner, and for southbound Grand boulevard cars at the northwest corner, of the intersection. However, it appears that on this occasion the car on which plaintiff was a passenger was not brought all the way up to the regular stopping point, but was instead brought to a stop some ten feet to the rear of another eastbound car which had immediately preceded it on the Wellston run and was then at a standstill discharging its own passengers at the regular stopping point. Despite the fixing of regular stopping points for the discharge of passengers, it would nevertheless seem that the stopping of one car behind another is not an unusual practice, and plaintiff's own testimony was that in the seven years he had been transferring at that intersection he had not infrequently known cars to be stopped one behind the other just as they were on the morning in question.

Plaintiff alighted from the eastbound Wellston car when its doors were thrown open by the motorman, and, as he had always done on all similar occasions, started at once to cross between the two cars to the opposite corner of the street where it was necessary that he go to board a southbound Grand boulevard car. Of the other passengers who had alighted ahead of him, some two or three had already crossed between the cars in their course towards the north side of the street, and plaintiff prepared to follow them, but not until he had first looked down towards the corner at the traffic signal and had seen that the red light was then against the movement of all Easton avenue traffic across Grand boulevard.

As a matter of fact, not only did plaintiff take occasion to observe the color showing on the traffic signal, but when he was midways of the eastbound track, directly between the two cars, he took the added precaution to look to his right in the direction from which any westbound traffic would come. From this position, though the standing car prevented him from seeing any greater distance, he had a view for a distance of thirty or thirty-five feet towards Grand boulevard, and seeing no other car approaching within that space, and expecting traffic to be moving only on Grand boulevard at the moment because of the fact that the red light was showing on Easton avenue, he assumed that he would be able to cross the street in safety, and consequently continued on his course in the rear of the other passengers who were preceding him towards the corner where they would transfer to the southbound car.

Very likely the accident would not have happened had it not been for the fact that just as plaintiff was coming out from between the two cars his attention was directed to an automobile which appeared to be headed in his direction from an alley opening out into Easton avenue from the north at a point slightly to the left of the course plaintiff was taking. The consequence was that plaintiff did not look again to the right until just as he was in the middle of the westbound track, when he first heard the rumble of an approaching westbound car. He had heard no gong or bell, and indeed the other evidence showed that no warning of the car's approach had been given.

As he glanced to the right, he saw the westbound car bearing down upon him, then only six or seven feet away, and being operated at a speed which he and his witnesses estimated at from fifteen to twenty miles an hour, in violation of the limit of three miles an hour fixed by the city ordinance for the operation of a street car alongside another car which is stopped to take on and discharge passengers. Plaintiff attempted to step back off of the track, but had no chance to reach a place of safety in the moment of time at his disposal, being struck by the front of the car, which ran a full car's length after striking him before it was brought to a stop.

Other evidence disclosed that the westbound car had been stopped at the northeast corner of the intersection at its regular stopping point, and that just as the electric signal was in the act of changing from green to red the motorman had started the car up at a "terrific speed" in an endeavor to get across Grand boulevard before his right to proceed would be blocked by the red light.

There was expert evidence to show that under the existing conditions the car could have been stopped in from eighteen to twenty feet at a speed of fifteen miles an hour; in from twenty-five to thirty feet at a speed of twenty miles an hour; and in from two to three feet if the motorman had been operating it at the time in compliance with the ordinance speed of three miles an hour.

At the close of the case it was stipulated and agreed between cou...