Lewis v. St. Louis Independent Packing Co.

• Decision Date: 18 February 1928
• Citation: 3 S.W.2d 244
• Parties: LEWIS v. ST. LOUIS INDEPENDENT PACKING CO. et al.
• Court: Missouri Supreme Court

3 S.W.2d 244

LEWIS v. ST. LOUIS INDEPENDENT PACKING CO. et al.

Supreme Court of Missouri, Division No. 2.

February 18, 1928.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

Action by Henrietta Lewis against the St. Louis Independent Packing Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Bryan, Williams & Cave, of St. Louis, for appellants.

Mark D. Eagleton and Hensley, Allen & Marsalek, all of St. Louis, for respondent.

HIGBEE, C.

Plaintiff sued the defendants for damages for personal injuries sustained on March 20, 1923, and from a verdict and judgment for plaintiff for $17,000 the defendants appealed.

The petition was filed in the circuit court of the city of St. Louis on May 19, 1923. Joseph Buerman, an employee of the defendant packing company, was driving its 1½ ton Federal truck east on Olive street with a 1,700 pound load, and ran over and injured plaintiff. The pleadings are thus summarized by the appellant: The petition contains the usual formal allegations and pleads (1) what is known as the right-hand curb ordinance, and (2) the speed ordinance. Petition then charges defendant with negligence as follows: (1) Excessive speed; (2) failure to sound warning; (3) failure to exercise ordinary care to discover plaintiff; (4) failure to stop; (5) failure to swerve or turn; (6) humanitarian doctrine; (7) negligent swerving of machine into plaintiff; (8) violation of speed ordinance; (9) violation of right-hand curb ordinance.

The answer of both defendants was a general denial and a specific plea of contributory negligence.

The day was clear, and the street, paved with wooden blocks, was dry. The accident occurred about 11 a. m., at a point east of the intersection of Olive and Twelfth, both public streets, in a business district in the city. Mrs. Lewis, the plaintiff, aged 27, was employed as cashier and waitress in a restaurant at 1131 Olive on the north side of the street just east of an alley running north and south about 120 feet east of Twelfth street. There are two street car lines running east and west in the center of Olive street; the south rail of the south line being about 15 feet from the south curb of the street. The Post-Dispatch building is at the northeast corner, and the May-Stern Company building is at the southeast corner of the intersection of these streets, and both buildings extend east from the building line on Olive street to the alley above mentioned. The entrance door on Olive street to the May-Stern building is about halfway between Twelfth street and the alley. There is some dispute about the number of cars parked in front of this building at the time of the accident.

Mrs. Lewis testified:

I left the restaurant, walked west on the north sidewalk to the pedestrian's crossing at Twelfth street and crossed over Olive street to a mail box, and started to return to the north side, but there was an east-bound street car about the middle of Twelfth street, so I walked east on the south side until the car passed the entrance door in the May-Stern building. I looked west, saw no traffic, and started to go north across the street from a point in front of the door in the May-Stern building. I walked straight north until I stopped on or possibly a foot north of the north rail of the south or east-bound car track. I there looked east and west, and saw a yellow truck 35 or 40 feet to the west, and running east astride of the south rail of the east-bound track, so that in my judgment the left-hand side of the truck was 3 feet south of where I was standing. There were three or four west-bound automobiles approaching; the nearest was running in the rails of the west-bound track, and about 10 feet east of me. I stopped a few seconds for these west-bound cars to pass. From the time I stopped I stood still until I was struck, and, when I looked back west, I felt something coming on me, and I turned to look, and this truck was probably not more than a foot from me. I turned to grab the truck to save myself, and it drug me down, and dragged me 10 or 15 feet east while I was trying to hold myself up; the left side of the automobile struck me. When the machine stopped, I was about 15 feet west of it, and was rendered semiconscious. No horn was sounded. I was picked up and taken to the restaurant, and then to the city hospital, and, after 3 days, to the Missouri Baptist Sanitarium, where I remained 5 weeks, where I suffered pain in my limb, spine, head, in fact my entire body. The pain was in my right limb, between the knee and ankle and the right side of the spine, the big toe of the right foot was mashed, and I suffered pain and concussions and bruises on the upper right leg and all over my body. I had to use crutches after I came out of the hospital, which was 6 weeks from October 25, 1923, and 2 weeks from December 31, 1923. The first time I had an operation on my right limb, some dead bone was removed and bone scraped. Before this my leg was swollen twice its normal size. The last time the leg was opened again a fistula was removed and the bone scraped. I was in good health before the accident, and had worked two years at one place at $25 per week. Since the accident I have had an inflammatory condition of my back and it pains constantly; have been unable to sleep, and have lost 20 pounds.

On cross-examination:

I walked down to about the middle of the May-Stern building. I did not come out immediately in front of a parked automobile, but about 15 feet away from one. There was an automobile 15 feet east of me, and one between me and the alley. I was looking straight ahead. I was watching for traffic, and not paying close attention because there was nothing close to me when I started, and, when I looked around, the truck was right on me, not more than a foot from me. I had glanced casually; I knew the truck had room to pass behind me. From the time it was 35 feet away I did not see it till it was a foot from me. I felt safe. The truck was running about 15 miles an hour, and, when I first saw it, it was running so that the south rail of the east-bound track was about under the center of the truck, and the last time I saw the truck it seemed to have swerved to the north, so that the north wheel of the truck was within 6 inches of the north rail, and this was the position of the truck when I was struck. There was a space of 30 feet between the two cars parked on the south side of the street. I did not listen for the truck after I first saw it, because I presumed it would go behind me.

The defendants had taken the deposition of the defendant Buerman at Flint, Mich., on April 5, 1924. Plaintiff read in evidence the examination in chief. She also read in evidence the cross-examination of Buerman, over the objection of the defendants on the ground that in reading the deposition plaintiff made the deponent her witness, and she had no right to cross-examine her own witness. The objection was overruled, and defendant saved an exception.

Buerman testified in chief:

I followed an Olive street car, 20 or 30 feet back of it. When I got to the corner I seen a woman running on the sidewalk. She came out between two machines, and ran from the curb right in front of my machine. Whenever I seen her I tried to stop as fast as I could. When I stopped my machine, I was right on the west side of the alley. That moment I seen her I put on my brake and stopped immediately. I was driving a one and one-half ton Federal truck east on Olive street. I struck Mrs. Lewis east of Twelfth street and 20 feet west of the alley, and immediately stopped the truck.

Cross-examination:

There was nothing in the construction of the street to interfere with stopping the machine. I was east bound at the time of the accident on business of the defendant St. Louis Independent Packing Company, and had a load of 1,700 pounds. As I came east, the extreme right side of my truck was about 6 inches south of the south side of the south rail of the east-bound track. My speed was from about 4 to 6 miles per hour. The truck was a left-hand drive; brakes in good condition. Going at that speed I could stop in 4 or 5 feet. I saw the lady running eastwardly fast on the sidewalk, and followed her from that time till I struck her. She stepped from the sidewalk, and ran north. After leaving the curb, she went about 15 feet to get to the right side of my machine. The left side struck her. The machine is about 6 feet from side to side. When I first saw the plaintiff, my truck was close to the east curb line of Twelfth street. She ran about 15 feet east. I had a horn on the machine. The plaintiff never gave any indication she was going to stop. She never did look in the direction of the machine. After the machine struck her, I got out, and she was lying 4 or 5 feet west of the machine. Plaintiff left the sidewalk at a point even with the middle of the door into the May-Stern building, and continued due north toward the truck. I was traveling 4 or 6 miles an hour. She was moving faster than the machine. The machine at a point where the spring comes out came in contact with plaintiff. There was nothing to prevent me from stopping at any place I cared to. I never sounded the horn. The machine came east in a straight line from the time I reached the east side of Twelfth street until the accident happened. I did not swerve the machine; it was equipped with regular foot brake and emergency brake. I don't recall anything to obstruct my view of this lady as she came east on Olive street and as she turned north. The machine had struck her before I applied the brakes. Q. Do you recall making any statement to any one after the accident occurred as to the manner in which it happened? A. Well, there was a gentleman from the American Automobile Insurance Company out to the factory at the time. That is the only statement I made about the matter.

Redirect examination read by the appellant:

I do not recall there...