McCaughen v. Missouri Pac. R. Co.

• Decision Date: 18 June 1925
• Docket Number: No. 18980.,18980.
• Citation: 274 S.W. 97
• Parties: McCAUGHEN v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

274 S.W. 97

McCAUGHEN v. MISSOURI PAC. R. CO.

No. 18980.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Rehearing Denied July 7, 1925.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by William M. McCaughen against the Missouri Pacific Railroad Company, a corporation. From a judgment for plaintiff, defendant appeals. Reversed.

James F. Green and M. U. Hayden, both of St. Louis, for appellant.

J. E. Patton and Curlee & Hay, all of St. Louis, for respondent.

BRUERE, C.

Plaintiff brought this action to recover damages for personal injuries received on September 10, 1920, through the alleged negligence of one Emmett Liese, an alleged servant of defendant, in the operation of an automobile at or near the corner of Ninth and Chestnut streets, in the city of St. Louis, Mo. The trial below resulted in a verdict and judgment for the plaintiff for $4,000. and the case is here on defendant's appeal.

At the close of all the evidence introduced the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give; proper exceptions being taken at the time. Counsel for appellant insist that the demurrer to the evidence should have been given. In support of their contention, learned counsel for defendant contend: First, that the evidence adduced does not show negligence on the part of Emmett Liese, the chauffeur of the automobile in question; second, that the evidence adduced shows that the plaintiff was guilty of contributory negligence as a matter of law; and, third, that there is a failure of proof that !Emmett Liese, the servant of the defendant, while operating the automobile on the occasion of plaintiff's injury, was acting within the scope of his employment by defendant.

The facts and circumstances attending the injury are undisputed, and are established solely by the testimony of plaintiff. Regarding the manner in which the accident occurred, the plaintiff testified as follows:

"On the 10th day of September, 1920, at about 9:30 in the morning, I was going south on the west side of Ninth street. Ninth street runs north and south in the city of St. Louis and Chestnut street runs east and west. I stepped off the west curb to cross Chestnut. There was an automobile going west which I observed; waiting for it to pass, stepped onto the pavement, walked to about the middle of the street, saw about 100 to 150 feet to the west a machine coming east on Chestnut street, the proper side—south; the speed was not excessive, 18 or 20 miles I would say, but rather fast for crossing this intersection. I have ridden in machines and drive one, and feel that I can with reasonable accuracy estimate the speed of a machine as I see it running on the street. Judging the speed, I mentally concluded that I would wait until he passed; not try to cross. I stood still; I am convinced that the driver thought I was going to— Well, anyway, he turned to the left, which would be to the northeast, evidently with the intention of swerving around me in case I ran ahead, but I didn't, and he struck me, and the machine was on the southwest corner of the street. After going over me, it was on the sidewalk on the northeast corner on Ninth and Chestnut. * * * The right front and the left rear wheel went over me. It went over this left shoulder and it went over my left wrist. * * *

"Q. When you stopped, as you have suggested, near the center of the street, as I understand you to say, Mr. McCaughen, approximately how far away from you was the machine at that time? A. A hundred feet.

"Q. Now was there anything between you and the machine at that time? A. Nothing. "Q. And did you remain standing until you were struck? A. I did, until I saw that he was swerving that way, and then I jumped back to—

"Q. You jumped back from there toward—. A. The rear.

"Q. —towards the north? A. Towards the north. He made a very sharp curve; instead of turning to the south, to the north.

"Q. Tell the jury how much space there was between where you were standing when you came to a stop and the south curb of Chestnut street? A. Oh, 25 feet.

"Q. You estimate you were near the center of the street? A. Yes, sir; probably 3 to 4 feet north of the center of Chestnut street.

"Q. Was there anything between you and the south side of the street at that time? A. Nothing. * * *"

Cross-examination:

"Q. Mr. McCaughen, what is your age? A. Well, I am past 60, Mr. Hayden.

"Q. Between 60 and 61, aren't you? A. Yes.

"Q. Now, on the morning of this accident you say that you first stepped off the curb on the west side of Ninth and on the north side of Chestnut, that would be at the northwest corner? A. Correct.

"Q. After stepping off the curb, you then waited for this machine that was going west? A. I did.

"Q. And then you walked to about the center of Chestnut street? A. That is right.

"Q. At that time you noticed the machine which afterwards struck you coming east? A. I did, coming from the west.

"Q. Yes; coming from the west. When you first observed it you say it was about 100 feet west of you? A. I should estimate between 100 and 125 feet west.

"Q. At that time, then, you stopped? A. I did.

"Q. Did you continue to look at the machine as it approached you, or did you look in any other direction? A. At the machine.

"Q. You stood there looking right at the machine? And about how far away was it from you when it started to turn towards the north, or northwest? A. I would say 30 feet when the curve—when I first observed that the machine started to curve towards me; only takes a flash: As I saw it curve to me I leaped back.

"Q. That is, back towards the north? A. I fancied that he thought I would run ahead and he would curve around me; instead of that I— thinking his intention was—but that he unfortunately curved the other way and came straight over this way.

"Q. Over this way? What way do you mean? A. Northeast.

"Q. Northeast? A. Yes, sir.

"Q. Do you know what part of the machine it was that hit you? A. The front left wheel and the rear right.

"Q. You were struck by the left side of the machine, that is? A. Yes.

"Q. The two wheels? The two left wheels? A. Yes, yes—no; the front left and the rear right.

"Q. Oh, the rear right? A. Yes. * * *"

As to the first contention, viewing the evidence in the light most favorable to plaintiff, as we must view it in passing on the demurrer, the evidence shows that while the plaintiff was walking south across Chestnut street, on the west side of Ninth street, he saw the automobile approaching from the west, on the south side of the street, distant about 100 or 125 feet; that on reaching the center of said street, being a point 25 feet north of the south curb of Chestnut street, he stopped and waited for the approaching car to pass him; that while he was standing still, at said point, the automobile continued east, on the south side of the street, until it was about 30 feet from plaintiff, when it suddenly and abruptly swerved towards the center of Chestnut street, and directly towards and upon plaintiff; that plaintiff, seeing the car swerving towards him, stepped back towards the north to avoid being struck, but was unable to save himself, and was struck by the left side of the machine, run down and injured. Upon this condition of the record we hold that there was ample evidence adduced to show negligence on the part of the chauffeur of the automobile. We further hold that the evidence does not show that the plaintiff was guilty of contributory negligence as a matter of law.

As to the third point urged in support of the contention that the demurrer to the evidence should have been sustained, the material allegations, setting up the agency of Emmett Liese, the chauffeur of the automobile in question, contained in the petition, are as follows:

"Plaintiff states that on or about the 10th day of September, 1920, the said servant and agent, after having reported at about 8:30 a. m., to his superior at the office at Seventh and Poplar streets, acting in the scope of his employment, went direct in an automobile to or near Fourteenth and Market streets, St. Louis, Mo., on an errand for said railroad company, and having accomplished said errand he thereupon proceeded to return directly to the said office at Seventh and Poplar streets in the automobile heretofore mentioned, and drove same east over Chestnut street to Ninth street, both open and public highways in the city of St. Louis, Mo. * * * Plaintiff states that said acts of said servant and agent in charge of said motor vehicle were within the scone of his employment and authority of defendant, and were done with the knowledge and consent of the said railroad company, while the said servant and agent was serving the said railroad company pursuant to his said employment and while he was in the course of his employment under the said railroad company."

The only evidence adduced, by the plaintiff, bearing upon the said allegations contained in the petition, was the testimony of Emmett Liese. On direct examination, Liese testified as follows:

"On September 10, 1920, I was in the employ of the defendant company as a special officer. My duties were looking after car thieves and protecting railroad property in general. If I caught car thieves in the act of robbing a car I would put them under arrest. In the event a robbery was committed or suspected I first made a report to my superior officer to that effect, told him what facts I knew about it, and got in touch with different officers in the city in order to secure information with respect to it. In getting in touch with said officers I would go to their place of business, or to whatever yard they worked in. In going to see the different officers and people to get this information I would go most of the times by foot, other times by street car. I generally went by foot and interviewed these different yardmen. In a way it...