Marshak v. William J. Brennan Grocery Co.

• Decision Date: 04 June 1935
• Docket Number: No. 22692.,22692.
• Citation: 83 S.W.2d 185
• Parties: MARSHAK v. WILLIAM J. BRENNAN GROCERY CO.
• Court: Missouri Court of Appeals

83 S.W.2d 185

MARSHAK v. WILLIAM J. BRENNAN GROCERY CO.

No. 22692.

St. Louis Court of Appeals. Missouri.

June 4, 1935.

Rehearing Denied June 18, 1935.

Appeal from St. Louis Circuit Court, Division No. 6; H. A. Hamilton, Judge.

Action by David Marshak against the William J. Brennan Grocery Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

King G. McElroy and Case, Voyles & Stemmler, all of St. Louis, for appellant.

Eagleton, Henwood & Waechter, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This action was instituted in the circuit court of the city of St. Louis on the 11th day of July, 1930, by David Marshak against the William J. Brennan Grocery Company, a corporation, to recover damages for personal injuries sustained as a result of having been struck by a truck driven by Cleo Martin, an employee of the defendant grocery company.

The accident occurred about 6 o'clock p. m. on April 5, 1930, at the intersection of Washington and Skinker boulevards, in the city of St. Louis.

Skinker boulevard is a north and south street about 80 feet wide at that point and with two street car tracks on it, the northbound track being the east track and the southbound track being the west track. The rails of each track are about 5 feet apart, and the distance between the northbound and the southbound tracks is also about 5 feet, and the whole is in the center of the street. Washington boulevard at that point is about 55 feet in width, and there is a slight jog in it on the west side of Skinker, to the south.

Plaintiff was a pedestrian crossing Skinker from the west along the south side of Washington boulevard, and when he had reached somewhere about the center of Skinker he was struck by the left fender of the defendant's truck, knocked down and injured.

The petition contains several allegations of negligence, but the plaintiff's case was submitted to the jury solely upon the humanitarian doctrine. The answer of the defendant was a general denial, coupled with the plea that plaintiff was guilty of contributory negligence in crossing the street at a time when there was much vehicular traffic, without paying any attention to the vehicles, not taking any care for his own safety, and suddenly, without any sign of his intentions, stepping backward into the path of and against defendant's truck. Plaintiff's reply was a general denial.

The jury returned a verdict in favor of plaintiff for $6,500, and defendant duly perfected its appeal and brings the cause to this court for review.

Plaintiff was 55 years old at the time of the accident; was a laborer; was born in Russia in 1875; came to America in 1898, and became a resident of St. Louis in 1904. His testimony concerning the accident was substantially as follows:

That when he started to cross Skinker from the west to the east side on the south side of Washington, he looked north on Skinker and saw a southbound street car turn off of Delmar avenue (which is one block north of Washington) onto Skinker; that he saw no automobiles coming south at that time; that he proceeded at an ordinary gait, and when he reached a point between the rails of the east street car track, used by northbound cars, he was knocked down and hurt; that he did not at any time see the automobile which struck him; that he did not see any automobile coming north in or near the rails of the east street car track; that he did not jump back or step back at any time before he was struck.

The testimony of Cleo Martin, the driver of defendant's truck, in respect to the accident, was substantially as follows:

That he was going in the truck to make some deliveries for the defendant grocery company; that he was driving on the north side of Washington boulevard intending to make a left turn to go south on Skinker, and that he stopped before entering the intersection and two young men, friends of his, got in the seat of the truck with him; that there was considerable traffic on Skinker at the time; that a southbound street car stopped on the north side of Washington, and that he made his left turn in front of the street car while it came to a stop; that just as he came out of the turn there was a Hudson sedan swept by him, going north, tolerably close to the truck, and that he thought it was going to strike the back end of the truck; that it was coming almost up to the center of the street dividing the traffic; that he was going at a speed of about 8 miles an hour, and that going at that rate the truck could be stopped in about 15 feet or a little quicker than that; that at the time of the collision he was going practically south, but that the back end of the truck was a little bit east of straight; that he gave no warning; that the first time he saw the plaintiff, the front of his truck was within 4 or 5 feet from him; that when he saw the plaintiff he applied his brakes; that plaintiff was a little to the west of the center of Skinker and about 15 feet to the south of the south line of Washington when he first saw him; that plaintiff was watching the traffic coming from the south with his back towards him, but not squarely towards him, more of a side about, half way around; that he did not think that plaintiff ever saw him; that the plaintiff seemed to step back to avoid being hit by the Hudson, which was going north, and that he stepped back 2 or 3 feet and directly into the path of his truck; that he may have turned the truck a little to the right, but that he had no recollection of having turned his truck either one way or the other; that plaintiff was struck with the outer side of the front edge of the left front fender; that the truck did not hardly go its length after the collision; that after the collision the man was lying alongside of the truck on the east side with his head north, feet to the south, the body not more than 18 inches from the truck; but no part of him under it, his head lying along even with the rear of the truck.

The testimony of Ted Higgs and Edward Crigger, the two companions of Martin in the truck, was substantially the same as Martin's, with this addition: Higgs testified on cross-examination that he said to Martin: "Watch that guy, Cleo," and Crigger, in answer to a question in his direct examination to tell what he saw in his own way, testified, among other things, as follows: "Right after we made our left turn (onto Skinker) I hollered at Cleo that there was a man in the street," and, on cross-examination, he testified that when they got out of the truck and saw plaintiff lying alongside of it, Martin said: "My God, did I kill a man?"

Paul Eckart, the motorman of the southbound street car, testified substantially as follows:

That he was stopping for passengers on the north side of the intersection; that the street car and the truck started up at about the same time; that, being on time, he permitted the truck to pass in front of the street car; that the truck traveled about 7 or 8 miles an hour; that there was a constant flow of traffic, two and three abreast, going each way; that plaintiff, when he first saw him, was between the west curb of Skinker and the west rail of the west street car track; that Skinker is around about 80 feet wide, from curb to curb, and Washington is around 50 or 55; that plaintiff stopped there to let a southbound automobile pass in front of him and then proceeded to a point in between the two sets of tracks, where he again stopped to let northbound machines go by; that, when in that position, a large sedan, northbound, broke out of traffic about 65 feet south of plaintiff and traveled in the space between the two sets of tracks; that, when the driver of the sedan saw plaintiff, he slowed down; that, when this sedan was 13 or 14 feet from plaintiff, he took two quick steps backward; that the sedan then went on past; that the truck was at least 27 feet north of the south side of Washington when it made the left turn to go south on Skinker, and about 92 feet north of the Hudson sedan at the time the Hudson "broke out" of the line of northbound traffic, moving towards plaintiff; that in this 92 feet of intervening space there was nothing but Marshak; that the Hudson sedan slowed up, but did not stop, that this old man, Marshak, stepped back and the Hudson sedan come right on through; that the left front side of the truck struck plaintiff; that there were automobiles passing between plaintiff and the truck to obscure the driver's view of plaintiff; that, from his vantage point, standing on the front platform of a City Limits car, he could look down upon plaintiff and the rest of the traffic and thereby see the whole thing.

While plaintiff was giving his testimony, he had spells of sobbing, crying, and groaning, muttering, wiping his eyes, face and head with his handkerchief, shaking his head back and forth, and swaying back and forth and saying repeatedly, "I wish I be dead." Counsel for defendant objected to this conduct and asked that the jury be discharged and claimed that, in effect, he was denied the right of a full cross-examination of the plaintiff, and assigns as error the refusal of the court to discharge the jury, and also the refusal to grant a new trial because of such conduct on the part of the plaintiff while testifying.

Defendant also claims that plaintiff failed to make a case under the humanitarian doctrine, and that plaintiff's instruction No. 1 was erroneous, and that the court erred in refusing to set aside the verdict as being against the weight of the evidence, and also that the verdict was excessive.

Defendant's first assignment of error is based on the refusal of the trial court to discharge the jury on account of plaintiff's conduct while on the witness stand, in crying and exhibiting other manifestations of nervousness, and that such refusal was an abuse of discretion.

It is true that plaintiff did, on several occasions during his examination, cry and exhibit other manifestations of...