Larkin v. Wells

CourtCourt of Appeal of Missouri (US)
Citation278 S.W. 1087
Docket NumberNo. 19194.,19194.
PartiesLARKIN v. WELLS.
Decision Date08 December 1925

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by John Larkin against Rolla Wells, receiver of United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, 0. P. Owen, and John F. Evans, all of St. Louis, for appellant.

Bryan, Williams & Cave, and Wendell Berry, all of St. Louis, for respondent.

BENNICK, C.

Plaintiff instituted this action to recover for injuries to his person and damage to his property, alleged to have been sustained as the result of a collision between his Packard automobile, which he was driving southwardly on Catalpa street, in the city of St. Louis, and a west-bound Hodiamont street car operated by defendant. The verdict was for plaintiff in the sum of $3,428, and a judgment entered thereon, from which defendant has appealed.

The petition counted on five assignments of negligence: (1) Operation of the street car at a negligent rate of speed in excess of 15 miles per hour; (2) failure to sound a warning; (3) violation of the vigilant watch ordinance; (4) failure to keep the car under control; (5) failure to stop the car or check the speed thereof after the motorman saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger and oblivious thereto.

The answer was a general denial, coupled with several affirmative pleas of contributory negligence. The reply was conventional.

The evidence disclosed that plaintiff, on November 29, 1920, was driving his automobile southwardly on Catalpa street, with the right side of his auto 8 feet east of the west curb. Catalpa street at that point is 30 feet in width and is crossed approximately at right angles by the Hodiamont tracks of defendant. The accident occurred between two and 3 o'clock in the afternoon.

Plaintiff testified that he was driving at a speed of 15 or 20 miles per hour until he came within 40 feet of the west-bound street car track, when he slackened his speed, and looked to the east, but did not see any car approaching from that direction. He did observe an east-bound car approaching from the west, which stopped on the west side of Catalpa to discharge passengers. Seeing this car standing still, he started toward the tracks, and continued until he reached the first or west-bound track, when he was instantly struck by a west-bound car, his automobile crushed, and he himself rendered unconscious. He admitted that he did not look towards the east again after he looked from the point 40 feet north of the track, and at no time saw the west-bound car which struck him.

Viewing the evidence in the light most favorable to plaintiff, as we must do after a verdict in his favor, we find that, when the west-bound car was 15 feet east of the east curb of Catalpa, it was being operated at a speed of 10 miles per hour; that, as it came up to the regular stopping point at the east side of the street, it slowed down to the speed at which a man ordinarily walks; and that at a speed even of 15 miles per hour it could have been stopped with safety to the passengers within a space of 25 feet. There was testimony that, after plaintiff started up his machine from the point 40 feet north of the track, he kept his eyes continuously turned towards the east-bound car standing an the west side of the street; that, when the west-bound car was 15 feet east of Catalpa, the automobile was 35 to 40 feet north of the track; and that, when the car came to its usual stopping place at the east curb of the street, the automobile was only 20 feet north of the track. After the collision the west-bound car was stopped with the front end 80 to 90 feet west of the west curb of Catalpa.

At the close of plaintiff's case, and again at the close of the whole case, defendant unsuccessfully demurred to the evidence. All the issues in the case were abandoned or withdrawn, save the assignment as to defendant's alleged violation of the humanitarian doctrine, upon which issue alone plaintiff went to the jury. Defendant countered with appropriate instructions.

The first point urged by defendant for reversal is the alleged error in the action of the court in overruling its demurrer offered at the close of plaintiff's case. However, since defendant did not stand upon this demurrer, but put in its own evidence, the question as to whether or not a case was made for the jury must be determined in the light of all the evidence introduced both by plain tiff and defendant. Frye v. St. Louis, I. M. &. S. R. Co., 200 Mo. 377, 98 S. W. 566, 8 L. R. A. (N. S.) 1069; Simpson v. Wells, 202 Mo. 301, 237 S. W. 520; Burton v. Holman, 288 Mo. 70, 231 S. W. 630; Canty v. Halpin, 221 Mo. 96, 242 S. W. 94; Kaemmerer v. Wells, 299 Mo. 249, 252 S. W. 730. This point is appropriately raised by defendant in its second assignment of error. Inasmuch as the only issue submitted to the jury was that of defendant's alleged violation of the last chance rule, it is only with the evidence having to do with that feature of the case that we are now concerned.

In determining the question of defendant's liability, it must be conceded that it was the duty of the motorman operating the west-bound car to stop the same or slacken its speed within the shortest time...

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37 cases
  • Smith v. Public Service Co.
    • United States
    • United States State Supreme Court of Missouri
    • 17 Noviembre 1931
    ...from behind the traffic. [See Maginnis v. Ry. Co., supra; Smith v. St. Louis-S.F. Ry. Co., 9 S.W. (2d) 939, 945, 321 Mo. 105; Larkin v. Wells. 278 S.W. 1087, and cases cited; State ex rel. v. Trimble et al. (Mo.), 260 S.W. 1000, and cases cited.] There was evidence from which the jury could......
  • Lamoreux v. St. Louis-San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 5 Noviembre 1935
    ...Co., 70 S.W.2d 869; Brown v. Callicotte, 73 S.W.2d 190; Collins v. Beckman, 79 S.W.2d 1052; Tocco v. Kenny Co., 269 S.W. 928; Larkin v. Wells, 278 S.W. 1087; Erxleben Kaster, 21 S.W.2d 195; Cain v. St. L. Pub. Serv. Co., 59 S.W.2d 734; Niederhelm v. Railroad Co., 68 S.W.2d 895. (4) Our reco......
  • McCombs v. Ellsberry
    • United States
    • United States State Supreme Court of Missouri
    • 11 Julio 1935
    ...... Banks v. Morris & Co., 302 Mo. 267, 257 S.W. 484; Ziegelmeier v. Ry. Co., 51 S.W.2d 1029; Wilson v. Wells, 13 S.W.2d. 541. The evidence in this case wholly failed to show that. plaintiff was in a position of peril at any time prior to the. collision. ...Public Serv. Co., 328 Mo. 979, 993, 43 S.W.2d 548, 553(5); Smith. v. St. Louis-S. F. Ry. Co., 321 Mo. 105, 120, 9 S.W.2d. 939, 944(2); Larkin v. Wells (Mo. App.), 278 S.W. 1087(6).]. . .          So far. as relates to the subject matter involved in this discussion,. an ......
  • Gately v. St. Louis-San Francisco Ry. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 31 Diciembre 1932
    ...Holman, 231 S.W. 630; Simpson v. Wells, 237 S.W. 520; Canty v. Halpin, 242 S.W. 94; Melican v. Whitlow Const. Co., 278 S.W. 361; Larkin v. Wells, 278 S.W. 1087; Seewald Gentry, 286 S.W. 445; Miller v. Collins, 40 S.W.2d 1063; Laudwig v. Central Mo. Power & Lt. Co., 24 S.W.2d 625; Shupback v......
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