Myer v. Wills

• Citation: 277 S.W. 585
• Decision Date: 29 September 1925
• Docket Number: No. 19023.,19023.
• Parties: MYER v. WILLS.
• Court: Missouri Court of Appeals

277 S.W. 585

MYER v. WILLS.

No. 19023.

St. Louis Court of Appeals, Missouri.

September 29, 1925.

Rehearing Denied. October 30, 1925.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Clara Myer against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

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

Douglass, Inman & Horsefield, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff in a collision between defendant's street railway car and a Ford automobile in which plaintiff was riding. The accident occurred on Olive street, just west of Grand avenue about 9 o'clock in the evening of February 23, 1923. This action was commenced on March 15, 1923. The trial was had on February 26, 1924. The petition charges the violation of the humanitarian rule and the vigilant watch ordinance and the speed ordinance of the city of St. Louis. The trial was by jury. The cause was submitted to the jury under the humanitarian rule and the vigilant watch ordinance. The trial resulted in a verdict and judgment for plaintiff for $7,500. Defendant appeals.

The plaintiff testified:

"I live at 815 O'Fallon street with my mother. I am married but am not living with my husband. On the evening of February 23, 1923, I attended a picture show at the Rialto Theater on Grand avenue near Olive. Mr. Morris Schneider was with me. After we got out of the show, we went across Olive street where our automobile was parked and got into the automobile. It was parked on the north side of Olive, a short distance west of Grand. When we got into the automobile, Mr. Schneider drove it. It was his automobile. I had no interest in it at all. When we got into the automobile we drove west on Olive. There were automobiles right in front of us, and automobiles were parked all along on the north side of Olive. When we got in the automobile we started up, and we went about 50 or 75 feet, and I never heard any noise or gong, and the next thing I heard was something ran into us. I do not know what it was, and that is all I know about the accident. We had not at any time been north in an alley on Olive street. When we got in the automobile, we looked to see if a street car was coming, and there was no street car in sight. Mr. Schneider always looked out to see if a car was coming, or in back of him, before he pulled out. I drove with him a great deal when his wife was along. We were all friends. His wife was not along that night. She was at home."

Morris Schneider, called on behalf of plaintiff, testified:

"I know Mrs. Clara Myer. I was with her on the evening of February 23, 1923. We went to a show at the Rialto Theater on the east side of Grand avenue between Olive and Lindell. We got out of the theater about 9 o'clock. We went right over to where we had our automobile parked to get ready to go home. It was a Ford touring car. It was parked on the north side of Olive street west of Grand. When we got in the automobile, I started up my engine and then looked around to see if there was anything back of me. Then I drove on out and started ahead; went west. There were automobiles in front of me and I had to just follow them up. The left wheel of my automobile was about a foot over the westbound track. I drove at a speed of about 10 miles per hour. The tail light on my automobile was burning. One could see an automobile along there on Olive street that night a distance of about a half a block ahead. When we had gone west about 150 feet, my automobile was hit by a west-bound street car in the rear. There were automobiles parked all along the north side of Olive street. `My automobile was parked 65 to 75 feet west of Grand avenue. When I started to move the front part of my automobile into the track, I looked back to see whether a street car was near at hand, and I could see all the way to Grand avenue. There was no street car in sight."

The witness identified a photograph of his automobile which he stated was taken two days after the accident. The photograph shows the rear end of the left rear fender crushed against the left rear corner of the body of the automobile. It also shows a slight dent in the left rear corner of the body. No other damage to the automobile appears from the photograph.

The motorman and conductor of the street car, called on behalf of defendant, testified that as the street car proceeded west the automobile in which plaintiff was riding ran suddenly and at a rapid rate of speed out of an alley or driveway on the north side of Olive street directly in front of the street car; that as the automobile turned to the west it was struck by the street car and was shoved against another automobile parked on the north side of Olive; that the street car was running at a speed of about 10 miles per hour as it approached the alley or driveway; that the car was stopped within a distance of 2% to 3 feet after it collided with the automobile; that the car was stopped as soon as it was possible to stop it after the automobile "came into the danger zone; that the car ran S to 9 feet after the brakes were applied before it collided with the automobile; that there were automobiles parked all along the north side of Olive; and that the distance between the parked automobiles and the overhang of the street car was about 4 feet.

Mr. Herman L. Meyer, a police officer, called on behalf of defendant, testified:

"I arrived at the scene of the accident within five minutes after it happened. The automobile which had been struck by the street car was on an angle facing west, just slightly towards the west, on the north side of Olive street. There was a driveway there. The rear end of the automobile was pushed up against an automobile which was parked there. The rear end of the automobile that was struck was right at the driveway, or a few feet west of it. It was angling on the track."

The conductor of the street car, called as a witness for plaintiff in rebuttal, testified that at the time of the accident there were 10 to 12 passengers on his car, and that he got the names of the passengers and forwarded them with his report of the accident to the foreman of his district. Defendant's counsel unavailingly moved to strike out this testimony. In the colloquy that ensued between the court and counsel, plaintiff's counsel remarked: "They had the witnesses but didn't produce them." Objection to this remark, with a request to strike it out, made by defendant's counsel, was overruled by the court. Whereupon on cross-examination of the witness defendant's counsel asked: "Did any of the passengers tell you that they saw the accident?" Objection to this question by plaintiff's counsel was sustained by the court.

Defendant assigns reversible error on the part of the trial court for permitting the plaintiff's counsel to argue to the jury, over the objections and exceptions of defendant, as follows:

"Now, let us look at the conductor's testimony. He says there were 10 or 12 passengers on that car and they saw this accident. The testimony is they took their names and that they were sent in to the United Railways. The plaintiff was taken away in an ambulance, and she had no opportunity to get names of witnesses. We don't know who they are; had no opportunity of knowing. There was no one described them and they are not here, none of them."

This argument was highly...