Murray v. St. Louis Wire & Iron Co.

• Decision Date: 07 March 1922
• Docket Number: No. 16807.,16807.
• Citation: 238 S.W. 836
• Court: Missouri Court of Appeals
• Parties: MURRAY v. ST. LOUIS WIRE & IRON CO.

238 S.W. 836

MURRAY v. ST. LOUIS WIRE & IRON CO.

No. 16807.

St. Louis Court of Appeals. Missouri.

Feb. 7, 1922. Rehearing Denied March 7, 1922.

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

"Not to be officially published."

Action by Bart Murray against the St. Louis Wire & Iron Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.

Hall & Dame, of St. Louis, for appellant. Foristel Z. Eagleton, of St. Louis, for respondent.

BECKER, J.

Plaintiff in an action for personal injuries recovered a judgment against the defendant in the sum of $5,000. Defendant in due course appeals.

Plaintiff's petition alleges that on the 3d day of October, 1918, he was driving a horse attached to an express wagon on which he was riding northwardly along the east side of Twentieth street in the city of St. Louis; that when the said wagon was in said Twentieth street and at a point about 20 feet north of Chestnut street it was struck by an automobile truck owned and operated by the defendant, said truck being driven in a southwardly direction along the east side of said Twentieth street; that the impact overturned plaintiff's wagon and threw him to the street, resulting in serious injury to plaintiff.

Plaintiff's petition contains six assignments of negligence: First, the failure to give plaintiff a timely signal with defendant's bell, horn, or other device for signaling; second, the failure to keep a vigilant watch; third, operating the said truck at a high and dangerous rate of speed; fourth, the failure to slacken the speed of defendant's truck as it approached plaintiff's wagon in said Twentieth street, and in failing to have said automobile under control when approaching plaintiff's said wagon along the east side of said Twentieth street; fifth, predicates a recovery on the humanitarian doctrine; sixth, operating the said truck in a southwardly direction along the east or left side of Twentieth street.

The answer is a general denial.

On the hearing of the case, at the close of plaintiff's case and again at the conclusion of all of the evidence, defendant requested the court to give the jury an instruction in the nature of a demurrer, each of which was refused. Plaintiff thereupon submitted his case to the jury upon instructions predicating his right to recovery upon the humanitarian doctrine. At the request of the defendant the court gave instructions to the jury withdrawing from their consideration the assignments of negligence as to the high and dangerous rate of speed and the failure to give a timely signal. The jury returned a verdict for plaintiff, and from the resulting judgment defendant appeals.

I. There are five assignments of error urged by the appellant here, one of which is that the court erred in submitting the case. to the jury on the humanitarian doctrine.

After a careful examination of the record we have come to the conclusion that the facts in evidence do not bring the case within the humanitarian doctrine, and that therefore the court erred in submitting the case to the jury on that hypothesis. Respondent's statement of the ease contains a fair epitome of the evidence, and we adopt it in the main.

Plaintiff testified that about 2 p. m. on the date of the injury he drove west on Chestnut street to Twentieth street and then turned from Chestnut street into Twentieth street, which is 40 feet wide, and drove north, in his one-horse wagon, on the east side of the street. Twentieth street runs north and south, and Chestnut street runs east and west. Plaintiff further testified that when he turned into Twentieth street his horse was walking about 4 miles an hour; that he drove approximately straight ahead about one foot from the east curb; that when he first saw the defendant's truck (which was just after plaintiff had turned into Twentieth street) it was coming down Twentieth street and just crossing Pine street, which is the next cross street north of Chestnut street; that he was unable to give the speed of the truck at the time, in miles per hour, but that it was going "pretty fast"; that as the truck came down the street towards him plaintiff did not change his position in the street, but continued to drive north; that when the driver of the truck left Pine street there was but one other vehicle standing on Twentieth street between Chestnut and Pine streets, which was a truck standing on the west side of Twentieth street, facing south. That as the defendant's truck came down from the north it traveled in a sort of zigzag, first to one side of the street and then along the other; that just before defendant's truck hit him plaintiff was on the right side of the street, about one foot from the curb, and that "there was nothing immediately west of me in the street"; that defendant's truck struck the left hind wheel of his wagon and knocked him out into the street. Plaintiff further testified that the driver of the truck "did not give any indications, other than which I have described, that he was coming, and did not blow any horn. He was on the east side of the street when he struck me."

On cross-examination the plaintiff said, speaking of the defendant's truck:

"I saw it cross Pine street and came right down to me; came right straight down on the west side of the street; it came down until he struck me on the east side. I do not know exactly how far he was from the front of my team and horse before he got on the east side of the street; he swerved over some way. I glanced at him as he came down the same as any other automobile; I did not think that man was going to go into me. I saw this automobile truck standing on the west side of the street there. He never turned out, just came down the street and ran into me. He swerved right into me after he passed me." (Italics ours.)

Plaintiff's witness Tina Campbell corroborated plaintiff's testimony with reference Up the fact that plaintiff was driving his wagon on Twentieth street about a foot from the curb on the east side thereof, and that his horse was walking when his wagon was struck by defendant's truck, and that there was no other automobile or wagon on Twentieth street with the exception of one truck which was on the west side of the street.

On cross-examination this witness said: "When I saw this truck going down Twentieth street it was on the right side of the street." When it reached a point about 8 feet from the truck standing on the west side of Chestnut street it turned out. Plaintiff's wagon was farther north than the standing truck.

Louis Willingham, who was the only other witness for plaintiff, testified he saw the defendant's truck go down the street at a speed of about 15 miles an hour; that when he. first saw said truck it was in the middle of the block on Twentieth street between Pine and Chestnut streets, and when the defendant's driver got near plaintiff's wagon he tried to make a turn from Twentieth street into Chestnut street and struck the back of I plaintiff's wagon, which knocked plaintiff from the wagon to the street; that plaintiff's wagon at the time was about one foot from the east curb line; that the collision occurred on the east side of the street and "was caused by him (defendant's driver) cutting towards the corner."

On behalf of the defendant the only witness who testified as to the facts with reference to the collision was L. A. Murray, who testified that he was a licensed chauffeur and had been driving the truck in question, as an employé of the defendant company, 1½ years prior to the date of the collision; that, when he reached the point in Twentieth street where Pine street intersects it, he found the street wet, having just been sprinkled, and that as he drove along the west side of the street he noticed a Wells Fargo truck standing on the west side of Twentieth street at a point about 75 feet north of Chestnut street; that from the intersection of Twentieth street and Pine street and until the time of the accident he was driving his truck at the rate of about 10 miles an hour; that when he saw plaintiff's wagon he slackened up until he was going about 5 miles an hour; that at the time he passed the Wells Fargo truck plaintiff's wagon was right in front of it; that he did not see plaintiff's wagon until he started to turn out and pass the Wells Fargo truck, at which time the distance between the east side of the Wells Fargo truck and the west side of plaintiff's wagon was about 7 feet, while defendant's truck had a width of about 6 feet, and thereupon, quoting the witness' own words, "I threw in my clutch and brake and my hind end skidded and hit him."

On cross-examination this witness was asked:

"What would stop you from seeing Murray's wagon if you had looked before trying to drive into that place? Was there anything to stop you from seeing Murray's wagon if you had looked?"

He answered:

"The Wells Fargo truck—there was a tarpaulin in front of it. Q. Were you right back of it? A. Yes, sir."

And, on being asked if there was anything wrong with his eyesight, the witness stated he was nearsighted, and, when asked the question, "Now, tell the jury if it is not a fact that because you were nearsighted is what caused the accident," he answered, "Well, if I had my eyesight, I guess I wouldn't have hit him."

After a most careful consideration of all the evidence, we see no escape from the conclusion that plaintiff has failed to make out a case under the humanitarian doctrine. What distance was defendant's truck from plaintiff's wagon when the plaintiff got into or was placed in a position of peril? The most that can be said is that at the moment defendant's driver started to turn his truck out from behind the Wells Fargo truck in his endeavor to pass through the space between the east side of the said truck and the west side of plaintiff's wagon plaintiff was put into the danger zone, but just what distance the defendant's truck was from plaintiff's wagon at...