Loehr v. Wells

• Decision Date: 10 July 1923
• Docket Number: No. 17712.,17712.
• Citation: 253 S.W. 461
• Parties: LOEHR v. WELLS.
• Court: Missouri Court of Appeals

253 S.W. 461

LOEHR v. WELLS.

No. 17712.

St. Louis Court of Appeals. Missouri.

July 10, 1923.

Rehearing Denied July 19, 1923.

Appeal from St. Louis Circuit Court, Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Delia Loehr against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and G. T. Priest, all of St. Louis, for appellant.

Ferris & Rosskopf, of St. Louis, for respondent.

NIPPER, C.

This is an action for damages sustained by plaintiff while riding in an automobile truck, which at the time was being driven by her son, when it was struck by one of defendant's street cars at the intersection of Nineteenth street and Washington avenue, in the city of St. Louis. The accident occurred on June 10, 1919.

The negligence counted upon in the petition is (1) failure on the part of the operator of the street car to observe a certain ordinance of the city of St. Louis requiring such car or cars, when about to pass another car going in, the opposite direction, at a point where it is permissible for passengers to alight from or board the car, to proceed at a rate of speed of not more than three miles an hour; (2) failure to ring a warning gong or bell; (3) failure to observe an ordinance of said city prohibiting the operation of such cars at a greater rate of speed than ten miles per hour in this portion of the city; and (4) the humanitarian doctrine.

The answer admitted that defendant, Rolla Wells, was receiver of the defendant company, and that he was in charge of its property. The answer then denies each and every other allegation, and, further answering, pleads contributory negligence of the plaintiff and her driver in that she directed the driver to drive said automobile onto the street railway track without looking or listening for approaching cars, and that the driver drove toward and onto the track without looking or listening; and also on account of plaintiff's driver violating certain ordinances of the city of St. Louis.

The reply was a general denial.

Plaintiff recovered judgment, and defendant appeals.

Washington avenue extends east and west, and is 80 feet wide from building line to building line, with a 15-foot sidewalk on each side. Double street car tracks occupy the center of this street. The north tracks are for the west-bound cars, and the south tracks for the east-bound cars. Nineteenth street at the intersection is 60 feet wide. Plaintiff, who at the time of the trial was 45 years of age, and married, lived with her husband at Chesterfield, about 22 miles from St. Louis. Her husband is a truck farmer, and she had been accustomed to coming to the Biddle Street Market several days each week during the summer months for the purpose of selling the products of the truck farm. Her son was driving the truck, as he had been doing, and was returning from the market about 7:30 or 8 o'clock in the morning when the accident occurred. He was driving south on Nineteenth street. When he came to the intersection of said street with Washington avenue, and when he had reached the point where said Nineteenth street intersects with Washington avenue on the north side thereof, he was driving at the rate of about 6 miles per hour, and within about 2 feet of the north curb of said Nineteenth street. There was a street car stopped at the northeast corner of Nineteenth and Washington, and passengers were alighting from and boarding said car. The motorman on this west-bound car motioned to the driver to proceed across in front of him. Plaintiff called her son's attention to the motorman's suggestion, and he proceeded at a rate of speed of about 8 miles per hour. Nineteenth street does not continue south across Washington avenue in a straight line, but there is a jog at this point. From the point where Nineteenth street intersects Washington avenue on the north, to where Nineteenth street intersects on the south, it is about 60 feet west. The distance is fixed by some witnesses at 40 feet, and by some at 75 feet. When the driver started to cross in response to the motorman's suggestion, turning in a southwesterly direction, he noticed a street car on the east-bound track coming from the west, and about 225 feet away. He did not observe the speed at which it was coming, but "judged" it was not coming very fast. He did not look to the west any more after he observed the street car this distance away until it was within 10 feet of him. He was then crossing the tracks to enter Nineteenth street extending to the south, at which time his truck was struck by the street car, and his mother, who was riding in the front seat with him, and on the west side thereof, received the injuries for which damages were recovered.

There is no point made in any way concerning the extent of the injuries, or the amount of the verdict, and it becomes unnecessary, therefore, to set out the evidence with respect to the injuries which plaintiff sustained.

Plaintiff testified' that, when they started across Washington avenue, she saw her son look in all directions, but that she did not look to the west, and did not see the street car until she was struck. It was a clear day, and the streets were dry. There was no gong sounded or bell rung by the operators of the street car after the driver first saw the car, and prior to the time it struck plaintiff.

From the testimony of some of the witnesses, it appears that the collision took place at a point in Washington avenue on a line with the middle of Nineteenth street south. Other witnesses put the point at near the east line of South Nineteenth street, and some near the west line thereof. The street car was traveling slightly up grade at the point where the accident occurred. When the street car struck the truck it traveled about 60 or 65 feet east from the point of the collision before it stopped. This distance, however, was placed by some witnesses at about one-half the car's length. The driver of the automobile placed the distance at about 60 feet from the point where he started when the motorman motioned to him to cross, to the point where the truck was struck. He had been driving this truck for his father for about four years.

There was some objection to the reading of the deposition of witness Spencer for the plaintiff, and prior to the reading of said deposition, Mr. Forrest G. Ferris, an attorney, testified that; on or about the 1st day of December, 1920, he saw witness Spencer—this being the time when his deposition was taken—and that he had learned such witness lived in Chicago, and that Spencer told him he did not expect to be in Missouri at the time of the trial because he lived in Chicago and did not expect to be back, and that he had not seen or heard of him since. After getting this information, he did not have a subpcena issued for him Prior to the time he moved to Chicago, he was a resident of St. Louis, and resided on Maple avenue.

Spencer testified: "From now on my home will be in Chicago." He stated that he saw the collision from a seat near the front of the street car which struck the truck; that the car was' behind time and was running at a rate of speed of 25 miles an hour, and did not slacken its speed; sound any gong, or ring a bell before the collision. It appears from defendant's evidence that such gong was sounded, and that the motorman began to slacken the speed when he was 20 or 30 feet west of the southwest corner of the intersection of Washington avenue and Nineteenth street south, and that the street car was traveling about 10 miles per hour. We do not mention defendant's evidence at this time in, detail, because it is urged that a demurrer should have been sustained, and we are only concerned with the evidence which would tend to establish plaintiff's claim, and if...