Mazzola v. Wells

• Decision Date: 03 March 1925
• Docket Number: No. 18779.,18779.
• Citation: 270 S.W. 412
• Parties: MAZZOLA v. WELLS.
• Court: Missouri Court of Appeals

270 S.W. 412

MAZZOLA v. WELLS.

No. 18779.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

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

Charles T. Bates, T. E. Francis, and Ernest A. Green, all of St. Louis, for appellant.

E. J. Houlihan, of St. Louis, for respondent.

NIPPER, J.

This is an action for damages for injuries received by plaintiff, and also damages to his automobile, occasioned by a collision between the automobile driven by the plaintiff and a street car operated by defendant. The accident occurred on November 3, 1921, at the intersection of Tenth street and Clark avenue, in the city of St. Louis. Plaintiff recovered damages, and defendant appeals.

No assault is made upon the pleadings in any manner by defendant in this court. Therefore it becomes unnecessary to refer at length" to the pleadings. Suffice it to say that, while there were several assignments of negligence in plaintiff's petition, he went to the jury upon only one assignment, namely, the humanitarian doctrine, and the sole and only question remaining in the case on this appeal is whether or not plaintiff, under the facts of this case, was entitled to have the question of defendant's liability under the humanitarian doctrine submitted to the jury. The form of none of the instructions is attacked in any manner, except that they should not have been given submitting this theory of defendant's negligence to the jury. There is no question made here as to the excessiveness of the verdict, and it becomes unnecessary to refer to the nature and extent of plaintiff's injuries as shown by the evidence. This leaves but the one question for our consideration, and that is as to the defendant's liability under the humanitarian doctrine.

The evidence in the case was all adduced by the plaintiff. Defendant offered no evidence. In this state of the record we must consider the evidence as it appears most favorable to the plaintiff.

Plaintiff was driving a Hudson coupe northward on Clark avenue, a street running north and south, about 7 or 7:30 p. m. on the date above mentioned. He had with him in said automobile two guests. Plaintiff was driving northwardly on Clark avenue about 4 or 5 feet from the east curb of said street. He was traveling at a rate of speed of about 12 miles per hour, and, as he approached the intersection of Tenth street and Clark avenue, he slowed down to about 9 miles per hour, then started up again, and reached a speed of about 10 miles per hour, at which time he was struck by the east-bound street car owned and operated by defendant, and traveling over Clark avenue. When he reached this intersection, and slowed down to about 9 miles per hour, he was somewhere between 17 and 30 feet from the street car track over which this car was operated. Taking the distance most favorable to plaintiff, we might, for the purposes of this case, consider it as 17 feet. He then looked westward and saw the street car approaching this crossing, and about 160 feet west of the west curb line of Tenth street, running at a speed of about 25 miles an hour. There were no other vehicles or obstacles of any kind between plaintiff's automobile and the street car at that time. He then looked eastward; and observed nothing approaching, and continued his journey north without again looking west, and, when he had arrived upon this east-bound street car track, he was struck by defendant's street car. Clark avenue, at the point where the collision occurred, was level,...