Laurent v. Hoxmier

• Citation: 227 S.W. 135
• Decision Date: 04 January 1921
• Docket Number: No. 16242.,16242.
• Parties: LAURENT v. HOXMIER.
• Court: Court of Appeal of Missouri (US)

227 S.W. 135

LAURENT v. HOXMIER.

No. 16242.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

"Not to be officially published."

Action by Julian A. Laurent against Nicholas Hoxmier. From judgment for plaintiff, defendant appeals. Affirmed.

Clarence T. Case, Victor J. Miller, and Fred Berthold, all of St. Louis, for appellant. Safford & Marsalek, of St. Louis,' for respondent.

NIPPER, C.

This is an action for damages to recover for the death of plaintiff's wife. Plaintiff recovered in the sum of $5,198, and defendant appealed.

The deceased came to her death on the 12th of July, 1917, by being struck by defendant's automobile near the street crossing at Olive street and Ewing avenue in the city of St. Louis, the automobile at that time being operated by one Walker, defendant's chauffeur, who was accompanied at the time by defendant. The accident occurred about 5:30 p. m.

The negligence complained of in the petition is that defendant negligently failed to give warning; negligently failed to reduce the speed and stop the motor vehicle in the shortest time he could, with the appliances at hand, consistent with the safety of the persons in the motor vehicle; negligently failed to keep a vigilant watch ahead; negligently failed to properly guide said motor vehicle negligently failed to exercise due care to avert said injuries, after he had discovered that deceased was in danger of being injured. The answer was a general denial and a plea of contributory negligence.

In addition to the occupants of the automobile, this accident was witnessed by two men, one Morrison, standing on the northeast corner of Olive and Ewing, and the other, Kane, standing on the southwest corner. Morrison stated that he saw the deceased start across Olive street from the sidewalk at the northwest corner of Olive and Ewing, just across Ewing avenue, directly west from where he was standing; that she looked both east and west on Olive street, and then stepped off the sidewalk and started across the street. At about the same time he looked east on Olive street and saw defendant's automobile coming about 200 feet away and traveling at the rate of 20 or 25 miles an hour; that the south wheels of defendant's automobile were running along the center of the west-bound street car track on Olive street, which street runs east and west, and the north wheels were to the north of the north rail of the west-bound street car track; that it so continued until it struck deceased at about the time she reached the center of the west-bound street car track; that deceased was carrying an umbrella in her right hand, but that it was not raised. He further testified that she was walking slowly, and never stopped at any time, from the time she left the sidewalk until she was struck by defendant's automobile. This witness was corroborated by the other witness to the accident, Kane, who, as heretofore stated, was standing at the southwest corner of Olive and Ewing, and directly in front of the deceased as she was advancing toward him across the street. Morrison's testimony was corroborated in every respect by Kane, with the exception that he placed the speed of the automobile at about 30 or 35 miles an hour. Each witness testified that no warning sound was given, or, if such was given, they did not hear it. Plaintiff was 43 years of age. The age of the deceased is not given in exact years. It was fixed by one witness at about 60 years of age, and by another at 40. After being struck by the automobile and carried for about 30 feet, these witnesses stated that the automobile ran about 30 or 35 feet past deceased before it stopped, or about 70 feet from the point where she was first struck. The deceased was placed in the automobile, and taken to her home on Clark avenue, where she died at about 9 o'clock the same evening.

The defendant, who was a doctor, and his chauffeur, Walker, both testified that the automobile was traveling at the rate of about 6 or 8 miles an hour immediately prior to and at the time deceased was hit; that the machine was being driven westward along Olive street, north of the west-bound street car tracks, and when the machine had reached a point about 2 feet from deceased (who was standing in the center of the west-bound street car tracks) she stepped backward two or three steps immediately in front of the automobile, and so near the same that it was impossible to stop the same in time to have avoided injuring her; that at the time she stepped backward there was a street car coming east on Olive street, and that she stepped backward to prevent the street car striking her; that her umbrella was raised, and they were unable to see her face as to whether she was looking or...