Knickerbocker v. Athletic Tea Co.
| Decision Date | 29 June 1926 |
| Docket Number | No. 19376.,19376. |
| Citation | 285 S.W. 797 |
| Parties | KNICKERBOCKER v. ATHLETIC TEA CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Charles B. Mix, J'udge.
"Not to be officially published."
Action by Robert Knickerbocker, by Tedie Knickerbocker, his next friend, against the Athletic Tea Company. judgment for plaintiff, and defendant appeals. Affirmed.
Frank Lee and John V. Lee, both of St. Louis, for appellant.
John T. Manning, of St. Louis (James T. Roberts, of St. Louis, of counsel), for respondent.
Appellant here was defendant below, and is appealing from a judgment in the sum of $1,500 awarded plaintiff, a minor, who sued through his mother, as next friend, for damages for personal injuries alleged to have been sustained by him on February 1, 1923, whilst he was riding his bicycle northwardly on Twelfth street immediately north of its intersection with Washington avenue, and at the northeast corner thereof, in the city of St. Louis, where he claims that he was struck by the breast or forequarters of a horse attached to a coffee and tea delivery wagon owned by the defendant company, and at the time being driven by one of its agents (now deceased), throwing plaintiff and his bicycle to the street, and that the wheels of the wagon passed over his body in the region of his abdomen, causing him injury. As to the pleadings, it is sufficient to state that plaintiff's case was submitted to the jury solely upon the humanitarian doctrine.
Plaintiff himself testified that he was 14 years of age, and was a messenger boy working at a branch office of the Western Union, located at 1108 Washington avenue; that he left the office at 5:15 with two messages for delivery; that he rode his bicycle and delivered the first of these messages at 414 North Twelfth street, and then rode his bicycle north on Twelfth street to the south line of Washington avenue, in that section of Twelfth street which is designated by safety zone signs for vehicles which intend to proceed northwardly across Washington avenue and continue northwardly on Twelfth street; that he had dismounted his bicycle at this point, waiting the proper signal from the traffic officer; that he remounted his bicycle on signal, and rode across Washington avenue northwardly; that when he had arrived at a point in Twelfth street a few feet north of its intersection with Washington avenue, and at a time when his bicycle was perhaps 13 inches west of the automobiles which were parked along the east side of Twelfth street immediately north of said Washington avenue, he was knocked down from the rear by a horse attached to a wagon belonging to the defendant company, the horse being driven in the same direction that he was proceeding on his bicycle; that the impact caused him to fall to the ground, and while lying on his back and side the left front and left rear wheels of the wagon passed over his abdomen; that up to the moment that he was struck by the horse he did not see the horse or wagon; that after he was struck the horse galloped on a short distance before it was stopped.
Among the witnesses adduced on behalf of plaintiff was one Joe Plaskey, who testified that he sold newspapers at the northwest corner of Twelfth and Washington avenue, and had been so engaged for over ten years; that he saw defendant's wagon strike and knock down plaintiff while he was riding his bicycle going north on Twelfth street at a point about 8 or 10 feet north of the north building line of Washington avenue, and about 9 or 10 feet west of the east curb of Twelfth street; that the plaintiff on his bicycle was going about 5 miles an hour, and was increasing his speed as he went along; that the horse attached to the wagon was being driven in the same direction a short distance behind the bicycle, with no vehicle between them, but that at a point some 25 to 30 feet north of Washington avenue the horse and wagon overtook the boy and knocked him from his bicycle, the left wheels of the wagon running over the boy; that the horse kept on going, and was stopped at the next corner, some 75 feet away. Plaskey testified that the driver of the wagon was "gazing at the top of the wagon, * * * and he didn't look where he was going at all," and that there were no vehicles in the street in such a position as to prevent the driver of the wagon turning his horse to the left and avoiding running into the plaintiff on his bicycle.
On cross-examination this witness testified that, when he first saw plaintiff and the defendant's horse and wagon, the horse and wagon were some 5 or 6 feet behind plaintiff, and on being asked whether he had testified on direct examination that, when he looked at the driver of the wagon, the driver "had his head up and was star-gazing," he answered:
Q. How long did he continue to look up at the roof of the wagon? A. Until he hit the boy.
John Reardon testified as a witness for plaintiff:
That he was a member of the police force of St. Louis assigned to the traffic division, stationed at Twelfth and Washington avenue; that he saw plaintiff struck and run over by defendant's horse and wagon.
On cross-examination this witness testified:
That, when he first saw the boy, "he was in front of the horse and wagon, going north on Twelfth street, riding not much faster than a walk; that he was going straight north in a direct course, and the horse and wagon were traveling at a trot; that there were automobiles parked along the curb on the east line of Twelfth street north of Washington avenue, and that the defendant's wagon was being driven between the car tracks and the parked machines, and that the boy was riding his bicycle just about the center between the parked machines and the street car tracks in the center of the street."
In the estimation of this witness the point where plaintiff was knocked from his bicycle was 35 or 40 feet north of the north curb line of Washington avenue.
Robert M. Rauscher testified on behalf of plaintiff:
That he saw plaintiff and defendant's horse and wagon just as plaintiff was ; that the left wheels of the wagon passed over plaintiff.
This witness places the point of the accident about an equal distance between the east curb of Twelfth street and the east rail of the north-bound street car tracks, which are in the center of Twelfth street. This witness testified that:
"No more than the wagon had passed over him; the wagon was naturally going pretty fast, and the horse galloping, and I got there about the same time the officer did and picked the boy up."
On cross-examination this witness was asked:
The defendant admitted the ownership of the horse and wagon; that the weight of the wagon unloaded was something over 1,200 pounds. The defendant adduced proof that Henry A. Martin, who was driving the wagon at the time plaintiff met with his injuries, had died prior to the date of the trial, and a deposition of the said Martin, taken by plaintiff, was read in evidence on behalf of defendant. Martin's version of the affair was:
That plaintiff, when the traffic officer gave the signal for north and south bound travel to proceed, at a time when the horse and wagon and plaintiff were waiting at the south line of the intersection of Twelfth street and Washington avenue — that the plaintiff jumped on his bicycle and "pulled up ahead of me"; that he (Martin) started up his horse, and "kept him in perfect control, giving this young lad a perfect chance to get ahead of me, but, instead of clearing, he zigzagged, that is, made one swing, and then swung right back in the front of me again, you see"; that the horse knocked plaintiff down, and that the rear wheel of the wagon went over plaintiff's bicycle, but that none of the wheels of the wagon ran over plaintiff; that, when plaintiff
According to Martin, he stopped the horse and wagon within 20 feet of the place where the accident took place.
The record discloses that prior to the trial plaintiff had taken the deposition of Martin, defendant's employé, who was driving the horse and wagon which ran into plaintiff, and that a full cross-examination by defendant of said Martin appears therein. Said deposition was duly filed by plaintiff in the case. Prior to the trial said Martin died, and when plaintiff himself was placed upon the stand the defendant objected...
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