Lydon v. Atlas Linen & Towel Service Co., 22028.

• Citation: 53 S.W.2d 38
• Decision Date: 04 October 1932
• Docket Number: No. 22028.,22028.
• Court: Missouri Court of Appeals
• Parties: LYDON v. ATLAS LINEN & TOWEL SERVICE CO.

53 S.W.2d 38

LYDON v. ATLAS LINEN & TOWEL SERVICE CO.

No. 22028.

St. Louis Court of Appeals. Missouri.

October 4, 1932.

Rehearing Denied October 18, 1932.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Thomas P. Lydon against the Atlas Linen & Towel Service Company, a corporation. Judgment for plaintiff, and defendant appeals.

Affirmed.

Anderson, Gilbert & Wolfort, of St. Louis, for appellant.

Everett Hullverson and Staunton E. Boudreau, both of St. Louis, for respondent.

HAID, P. J.

This is an appeal from a judgment in favor of plaintiff for $1,000 for injuries received in a collision with defendant's automobile at Tenth and St. Charles streets in the city of St. Louis.

The amended petition set out eight specifications of negligence, but the plaintiff went to the jury solely upon the humanitarian doctrine, and therefore all of the other specifications of negligence are of no present importance.

The answer was a general denial.

At the close of the plaintiff's case, and again at the close of the entire case, the defendant requested an instruction in the nature of a demurrer to the evidence, but each of these instructions was by the court refused.

Upon the appeal, the defendant insists that the court erred in its refusal to give the instruction requested by it at the close of plaintiff's case and again at the close of the whole case, and erred in giving plaintiff's instruction No. 1 based on the humanitarian doctrine.

The facts disclosed by the plaintiff's evidence in this case may be gleaned from the following statement of that evidence:

On his own behalf, the plaintiff testified that on December 13, 1928, he had been to the public library, walked down Olive street to Tenth street, got a small bundle of wood at Scruggs, Vandervoort, and then walked north on the east side of Tenth street; that he had the wood on his left shoulder, and glanced, as he passed the building line, but saw nothing except a machine to the east standing by a platform, but nothing moving; that he estimated he could see down the street about eighty or ninety feet; that the building line was about nine or ten feet from the curb at Tenth and St. Charles, and he was walking right in the center of the Tenth street sidewalk; after he got to the curb, he looked to see if there was anything coming around the corner, he stepped, and made a second step, and was struck by defendant's automobile; that he looked in no other direction because he did not have time; that he was hit when he took the second step; that he was going to turn around, but was hit and knocked down about four feet from the curb; that there were some automobiles parked about thirty-five or forty feet east of Tenth street; that he heard no warning or horn; that he did not see the automobile which struck him until after it hit him and he was knocked down; that the left bumper struck him in the shins and his foot went under the wheel; that, after he was struck, the automobile stopped about six feet from where he was lying; that he did not walk into the machine. On cross-examination he was asked whether at both the trial and taking the deposition he had not testified that he did not look east; he answered that he had not looked east when he stepped off the curb; that, after he stepped off the curb, he was about to look east; that he did not see the automobiles parked on the north side of St. Charles street until after the collision; that he was intending to look east, was watching traffic on Tenth street, afraid it would come around the corner on him; that he had the bundle on his left shoulder so that the bundle was not between him and east-bound traffic; that he never did see the automobile before he collided with it, and that was about two steps after he got off the curb; that he saw the automobiles parked on the north side of the street after he got up and was standing against the building; there were some trucks there about thirty-five feet east back on the platform located there, on the north side of the street; that he did not look east before he stepped off the curb, he was looking west, and never did look east before he was hit; that he was walking slowly and stepped about two feet, two feet to the step, about thirteen feet from the building line, from where he glanced east up to the time he was hit; that, from the time he glanced east at the building line until the time he was hit, he was watching west and never did look back east.

Forest N. Permenter, for the plaintiff, testified that he was formerly employed by the defendant and was operating the truck involved in the accident; that the truck was about eighteen feet long and had two-wheel brakes; that St. Charles street is about thirty feet wide and a one-way street; that, when the accident happened, he had practically stopped, going about three miles an hour; prior to that he was running about fifteen miles an hour, and was about twenty or thirty feet east of the building line when he started slowing down; that he was unable to estimate how long he had been traveling at three miles an hour, about fifteen feet; that he sounded no horn; that at three miles an hour he could come to a dead stop in about half a foot; that he was traveling about six feet from the south curb of St. Charles street and was paying attention to people who might be crossing St. Charles street; that he could see people for some distance down the street, and he saw the plaintiff as he approached and also a man who crossed in front of plaintiff; that he saw the other man cross when he was seventy-five feet and plaintiff was about ten or twelve feet behind him, walking up to the curb line and about eight feet from it; that he did not observe plaintiff looking in the direction of witness, but he saw plaintiff plainly, there being nothing to obstruct his vision; that plaintiff did not stop, but kept right on walking slowly; that plaintiff walked into the...