Mason v. United Rys. Co. of St. Louis

• Decision Date: 16 June 1922
• Docket Number: No. 22751.,22751.
• Citation: 246 S.W. 318
• Parties: MASON v. UNITED RYS. CC. OF ST. LOUIS.
• Court: Missouri Supreme Court

246 S.W. 318

MASON v. UNITED RYS. CC. OF ST. LOUIS.

No. 22751.

Supreme Court of Missouri, Division No. 1.

June 16, 1922.

Rehearing Denied December 18, 1022.

Appeal from St. Louis Circuit Court; Franklin Ferriss, judge.

Action by Frank E. Mason against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Vance Higgs, all of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

SMALL, C. L.

Appeal from the circuit court of the city of St. Louis. Suit for personal injuries and loss of automobile. The ground of negligence charged in the petition was in operating the street car which collided with plaintiff's automobile in excess of 10 miles an hour and in failing to keep a vigilant watch for the plaintiff in violation of the ordinances of the city of St. Louis. The collision occurred at the intersection of Olive street and Garrison avenue, about 2:30 in the afternoon of the 27th day of January, 1910. The answer, besides a general denial, contained a plea of contributory negligence, which the reply denied. The court refused to give a demurrer to the evidence offered by defendant, and refused certain instructions for defendant, and gave certain instructions for the plaintiff of which defendant complains on this appeal and which will be noticed in the opinion hereafter. The verdict was for $10,000, which defendant complains of as excessive. The appeal was duly lodged in this court.

The evidence shows that Olive street ran east and west, and Garrison avenue north and south. Each street was about 60 feet in width from property line to property line. They intersected each other at right angles. There were two street car tracks on Olive street. The distance between the tracks was 4 feet and 11 inches, and between the rails of each track, 5 feet 4 inches. The north rail of the north track was 22 feet 0 inches from the north property line of Olive street. The sidewalk was 12 feet 2 inches wide, leaving about 10 feet between the curb on Olive street and the north rail of the north track. Plaintiff testified that he drove down Garrison avenue from the north to Olive street at a slow rate of speed, and when about 10 feet north of the north rail of the north track he saw two street cars approaching; one coming from the west going east, on the south track, and another coming from the east and going west on the north track. Each car was then about a half a block away from him. That when he got to Olive street he came to a momentary stop, just checked up, but left his engine running; this was when the front of his machine was about 10 feet north of the north rail of the north or west-bound track. He saw both cars coming, each about half a block away; he would suppose about 250 feet distant. He looked west and saw the east-bound car about that far from him and then started his machine forward to go south across the tracks. There were no other vehicles in front of his; he had a clear way and he saw a car each side of him. He did not increase his speed and was "creeping along" going 2 or 3 miles an hour. When he saw the eastbound car, half a block away, he could not tell how fast it was running; he supposed that it was running at 10 miles an hour, the ordinance rate; that he depended on it running at that rate of speed. At that time he saw people on the street on the south side of Olive street, west of the (Garrison avenue) building line, the usual distance; if anybody wants to board a car they signal the car and usually walk a few feet; they do not know about where the car is usually stopped; these people were off the sidewalk and on the street standing there and looking west. When he saw this, he kept on— started up his machine to cross the street— to go south. He looked west again when the front end of his machine was beween the two tracks, a foot or so north of the north rail of the east-bound track. He then saw the east-bound street car approaching, and it was about three car lengths or about 105 to 120 feet west of him, depending upon whether a car is 35 or 40 feet long, which he did not know. He did not then increase his speed any, but kept on going forward, at 2 or 3 miles an hour. He thought the car was coming from the west, according to the city ordinance. He thought that as soon as he saw the street car. He had lived in St. Louis for 40 years, right there at Garrison and Olive. He had seen them run, it appeared to him, faster than the ordinance permitted. He had frequently seen them go 30 to 35 miles an hour. Did not think anything about this particular car at all. Supposed it was running ordinance rate; had the ordinance in mind always when he was driving a car, otherwise he would get in trouble. The car appeared to be going fast; nothing in this particular car to make him think it was running slower than that (ordinance rate). He could have stopped his machine going at the rate of 2 miles an hour in a foot or 18 inches; had good brakes.

At the time he was struck he was going 2 or 3 miles an hour. When the street car approaching from the west was about two car lengths away, it struck him in an instant; that the man was running too fast for him to get out of the way, and he started to turn his car east so that, if the street car struck him, it would strike him a glancing blow. Then, all at once, the east-bound street car hit his front hub and pushed him east on the track—something hit him on the head and knocked him unconscious. He went across Olive street on such slow speed because you cannot go across there very fast; if you do, you get into trouble. Olive street at that place is pretty thickly traveled by people on foot and at that time is very busy. When he came to, somebody had put something to his nose to revive him; he was sitting in his machine, or what used to be his machine. Some men sawed, chopped, and pulled him out. He was put on a stretcher and taken to the hospital, where he remained for seven days when he was taken home, where he was in bed very steadily for about four months. The doctors did not tell him all the injuries he sustained. He knew his left foot was crushed and that all these leaders here were all pulled out and strained in the right leg (indicating). he knew his face was cut, and he had a lump as big as your fist on the top of his head. He discovered a place you can stick your hand in in his back, and that his ribs were all jammed up and his nose was broken, and the doctor counted a hundred cuts or lacerations on his face and ears. Had none of these injuries be fore the collision and his health was good. He was working all the time, before he way injured, at $8 a day for 8 hours. The first work after his injury that he was able to do was in July, when he got a job with the gas company. This was July 29th. His wages were $3.20 per day for 9 hours. He worked there until the 15th of December, His work was principally writing, in charge of the supply room for the gas company. He had just taken the place of a man who had been hurt. Had not done anything practically after that. Was not able to do it. He had a little bit of a job as night watchman, but could not do that. Could not stand on his feet. Could not walk; held the job for six weeks and bad to give it up. Got $3 for 15 hours a night. Had earned nothing else since his accident. Was not physically fit to work at the time of the trial. Cannot lift anything or walk over a block. Gets out of breath. Can hardly walk up steps that he does not have to stop and hold on to something. His feet and legs hurt, and often it hurts him to breathe, and he has to lean up against something. Cannot sleep over an hour and 40 minutes at a stretch. Is up from 4 to 6 hours at night. Is getting awfully weak. Has to get up about every hour and a half to urinate. Cannot eat much. Gets all stuffed up and has to rub himself for 5 or 10 minutes; then he gets all right again. Ills digestion is not improving. Is not getting any stronger. He had none of these complaints or physical ailments before he was injured by the car. While his machine ran the 3 or 4 feet before the collision, the street car ran three car lengths. His mind was centered on the east-bound car because it was natural for him going south to look in that direction, and pedestrians were walking across the street (Garrison), and there was a string of automobiles parked on the west side of Garrison avenue south of Olive street. There were lots of people crossing the avenue.

Plaintiff's witness Mrs. Patton was on the street car going west. She saw the car coming east on the south track when it was about 200 feet west of Garrison avenue. She drove an automobile and had noticed the speed of street cars with her speedometer when she drove beside them with her machine. The east-bound car which struck plaintiff was, in her opinion, going around 30 miles an hour. She saw quite a few people standing on the south side of Olive street at the southeast corner. They were about where you would get on at the back of the street car. She supposed about 30 feet west of the property line of Garrison avenue. They were off the sidewalk where people wait to get on this east-bound car, but it did not stop for them, nor slow up. First thing she knew of the collision was the women on the front end of her car, running back and screaming. The east-bound car was then in Garrison avenue and had about approached the car she was on. In the crash, things from the automobile came through the car window from the south side. The two street cars were together when they stopped and the automobile was pinioned between them. It was a very bright, pretty day. She had no idea of an accident and saw these people waiting to get on and was just looking at them. Paid no more attention to the automobile. She had a claim against the company arising from the same accident, but had not brought suit. The car she was on slowed down very...