Kuba v. Nagel

• Decision Date: 07 February 1939
• Docket Number: No. 24694.,24694.
• Citation: 124 S.W.2d 597
• Parties: KUBA et al. v. NAGEL et al.
• Court: Missouri Court of Appeals

124 S.W.2d 597

KUBA et al. v. NAGEL et al.

No. 24694.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Rehearing Denied February 21, 1939.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be published in State Reports."

Action by Victor Kuba, father, and Julia Kuba, mother, natural guardians of Victor Kuba, Jr., a minor, deceased, against the Pevely Dairy Company, a corporation, and another to recover for the death of their minor son. From a judgment for plaintiffs against the named defendant in the sum of $2,000 and in favor of the other defendant, the named defendant appeals.

Judgment affirmed.

William H. Allen, Alexander Kerckhoff, and Daniel M. Kerckhoff, all of St. Louis, for appellants.

Leffler, Leffler & Buban, of St. Louis, for respondents.

BECKER, Judge.

This is an action by plaintiffs, husband and wife, to recover for the death of their minor son, Victor Kuba, Jr., alleged to have been caused by the negligence of the defendants Frederick A. Nagel and Pevely Dairy Company. The trial below resulted in a verdict and judgment in favor of plaintiffs and against the defendant Pevely Dairy Company in the sum of $2,000, and in favor of the defendant Nagel, and the defendant Pevely Dairy Company has appealed.

We adopt, with minor changes, appellant's statement of the case.

Plaintiffs' amended petition, upon which the cause was tried below, alleges that on April 25, 1936, the defendant Nagel was operating a Hudson automobile southwardly on Dolman street, in the city of St. Louis, at or near the intersection of Emmet street, and negligently collided with plaintiffs' minor son, Victor Kuba, Jr., a pedestrian, lawfully proceeding along and across the traveled portion of Dolman street at or near the sidewalk crossing thereof, whereby said Victor Kuba, Jr., sustained injuries resulting in his death; that the defendant Pevely Dairy Company, appellant here, negligently, and in violation of an ordinance, stopped, parked and left unattended one of its trucks on the west side of Dolman street, at or near the intersection of that street with Emmet street, in such place and manner as to obstruct the crosswalk or sidewalk crossing there for pedestrians on the north side of Emmet street, and "in such place and manner as to obstruct the view and passage of pedestrians attempting to cross Dolman street along the route of said crosswalk, as well also as their view of motor vehicles approaching from the north and the view of those operating motor vehicles on said Dolman street," as a direct result whereof plaintiffs' said minor son, lawfully proceeding upon and across Dolman street at or near the sidewalk crossing thereof, was caused to be collided with and ran into by the automobile operated by the defendant Nagel.

Section 4(L) of the ordinance alleged to have been violated by appellant, namely, ordinance No. 32926 of the city of St. Louis, is as follows: "Stopping. No person except in an emergency or to allow another vehicle or pedestrian to cross its path shall stop a vehicle in any street except near the right-hand curb thereof, and so as not to obstruct a sidewalk crossing, and shall not stop or stand a vehicle within the intersection of any streets. No person shall willfully or negligently obstruct the progress of vehicles along the streets."

The separate answer of each defendant to said amended petition was a general denial, coupled with a plea of contributory negligence on the part of plaintiffs in allowing their minor son to go upon the streets unattended, and a plea of contributory negligence on the part of said Victor Kuba, Jr.

We glean the following facts from the evidence in the case: Plaintiffs and their minor son, Victor Kuba, Jr., then five years and ten months of age, lived in the rear of 1827 South Fourteenth street, in the city of St. Louis. Fourteenth street is parallel with Dolman street and one block east thereof; both streets extending north and south. Dolman street is intersected by Emmet street, referred to as a "blind street" or "blind alley" because it extended only half a block in either direction from Dolman street. East of Dolman street, Emmet street ended at the alley between Fourteenth street and Dolman street; and the gate at the rear of plaintiffs' home, on the east side of the alley, was five or six feet north of the north line of Emmet street. Dolman street was paved with asphalt and was twenty-four feet and one inch wide. Emmet street was unpaved, except at and about the intersection, and was twenty-four feet wide. On the northwest corner of the intersection was a grocery store operated by Frank Strnad, the entrance to which was at the southeast corner of the building, facing to the southeast. There were two steps to be ascended in entering the store. There was a granitoid sidewalk between the building and the west curb of Dolman street, thirteen feet in width, and a concrete sidewalk on the north side of Emmet street, six feet and three inches wide, which extended from a point about twelve feet west of the building eastwardly to the corner, where there was a rounded curb. The south line of the sidewalk on Emmet street, as it extended east to the corner, did not quite meet the west end of the rounded curb there, but the outer edge of the latter was one foot and nine inches south of that line.

On April 25, 1936, shortly prior to noon, plaintiffs' son went from their home, unattended, to Strnad's grocery store. It appears that his mother had been to the store earlier in the day and owed the storekeeper five cents, and that she gave the boy a dime with which to pay the same and get some candy. She testified that she expected him to make the trip with two girls with whom he had been playing, the older girl being eight years of age; but neither of them accompanied him. When he entered the store he gave Strnad the dime and received from him a nickel, and at once went out the door, jumping down the two steps at the entrance, but was called back and given a piece of candy and again left. At that time a delivery truck of the Pevely Dairy Company was standing at the west curb of Dolman street, opposite the store building, and, according to testimony adduced by plaintiffs, the front part thereof extended one and one-half feet over and beyond the sidewalk crossing over Dolman street along the north side of Emmet street. In undertaking to cross Dolman street the boy went out into the street, passing in front of the parked truck, that is, south of the front end thereof, and collided with the side of a passing Hudson automobile that was then being operated southwardly on Dolman street by the defendant Nagel, the boy's head and face striking the rear door of the automobile at and about the rear handle thereof. After striking the automobile, the boy returned to and stood upon the sidewalk on the west side of Dolman street. Nagel, having stopped his car, went to the boy, and carried him in his arms to his car. Mrs. Kuba arrived upon the scene, and Nagel took her and the boy to the City Hospital, where he died that evening.

The truck of the Pevely Dairy Company, according to the testimony of the driver thereof, was an enclosed body type twenty feet long, seven feet wide, and twelve feet high. There is abundant testimony that this truck was parked in such a manner as to blockade the north sidewalk of Emmet street. John Polk, who lived immediately south of Strnad's grocery store on Dolman street, testified that the truck was parked "about a foot and a half * * * past Emmet street." When questioned by the court as to whether he meant that the front of the truck was parked out one and a half feet into Emmet street, facing south, he answered, "Yes sir." According to Peter Kartye, the truck extended about six inches or a foot over the Emmet street curbing. Stella Hayes, a witness for plaintiffs, testified that the truck "blocked the crosswalk; the whole sidewalk was blockaded and he had to come in front of the truck." Marie Strnad testified that the front of the truck was even with "the end of the sidewalk. * * Even with the curb."

According to the plat introduced in evidence, the sidewalk on the west side of Emmet street at the northwest corner of Emmet and Dolman streets, is six feet three inches wide, but the rounded curb at that corner extended an additional one foot nine inches beyond the made sidewalk. Therefore, according to the evidence most favorable to plaintiffs, the front end of the appellant's (Pevely Dairy Company) truck was parked on the west side of Dolman street facing south, with the front end thereof nine and one-half feet south of the west building line at the intersection of Emmet and Dolman streets.

Defendant Nagel testified that he drove south along Dolman street at ten miles per hour, at which speed he could stop his car within four feet; that his car was about sixteen feet long; that the handle of the rear door on the right-hand side thereof was nine or ten feet from the front end of the car; that the first time he saw Victor Kuba, Jr., was when the driver's seat of his car was "just a little past" the front bumper of defendant's, Pevely Dairy Company, truck, when he saw the boy "a little ahead of the truck."

On cross-examination Nagel placed Victor Kuba, Jr., "right in front of the truck and just about the middle of the radiator," the first time he saw him, and he "saw that the child had his head down and something in his hand like he was looking at it." He immediately applied his brakes. "* * * It just seemed like it was simultaneously when that child hit the back door handle of my car and my car gave that little lurch when I stopped it."

According to Peter Wilhelm, a witness for defendant Nagel, after the Nagel automobile had been brought to a stop the front bumper thereof was just past the center of Emmet street about two feet.

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