Nabe v. Schnellman

CourtCourt of Appeal of Missouri (US)
Citation254 S.W. 731
Docket NumberNo. 17668.,17668.
PartiesNABE v. SCHNELLMAN et al.
Decision Date02 October 1923

Appeal from St. Louis Circuit Court; Franklin Miller, Judge. " "Not to be officially published."

Action by Henry Nabe against Yank Schnellman and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Ramp Both well and William McNamee, both of St. Louis, for appellants.

Robert H. Merryman, of St. Louis, for respondent.

BRUERE, C.

Plaintiff, who is respondent here, brings this action to recover damages for personal injuries sustained by him by being struck by an automobile operated by the Empire Bottling Company, defendant herein. He obtained a judgment below for $5,000, from which defendants have appealed.

The acts of negligence alleged ha the petition, and upon which the case was submitted to the jury are: (1) Failure to keep said automobile as near the right-hand curb as possible, in violation of an ordinance of the city of St. Louis, Mo.; (2) failure to give warning of the approach of said automobile; (3) a violation of the humanitarian or last chance rule.

The answer was a general denial and a plea of contributory negligence, charging that plaintiff, while endeavoring to board a street car, ran in front of defendant's machine and so close thereto that it was unable, with the means and appliances at hand, to stop the same before striking plaintiff.

The assignments of error are: (1) That the court erred in giving plaintiff's instructions Nos. 1, 3, and 4, as modified by the court; (2) that the court erred in refusing instruction No. 9, asked by defendants, and in giving it as modified; and (3) that the verdict is excessive.

The undisputed facts established at the trial, are these: The accident occurred on the morning of December 23, 1920, at about 10:30 o'clock, at the intersection of Broadway and Montana streets, in the city of St. Louis, Mo. Broadway runs north and south and Montana street intersects it at right angles from the east, but does not run across Broadway; both are open public and much traveled streets. A double track street railway is maintained on Broadway. The north-bound street cars run on the east track and the south-bound on the west track. The distance from the west rail of the south-bound track, on Broadway, to the curb, on the west side of Broadway, is about 30 feet. On the west side of Broadway and facing Montana street is located the office of the United Railways Company. which is maintained in connection with its car sheds, also located at said intersection. The door of this office is about in line with the continuation of the north line of Montana street. At the time of the accident, the defendant Frank Schnellman was running the automobile in question, and was employed by and engaged in the business of the defendant, the Empire Bottling Company. He was driving said machine, at said time, at the rate of 8 or 10 miles an hour, and, at said speed, could have stopped it in 3 or 4 feet.

The evidence on the part of the plaintiff, tended to show that at the time of the accident plaintiff, who was a conductor of the United Railways Company, stepped out of said office to board a north-bound Broadway car, which at that time had Stopped at or near the continuation of the south line of Montana street. He walked east to the west curb of Broadway and then saw defendant's automobile about 125 to 130 feet away, coming towards him from the north, and running 4 or 5 feet east of said curb. He continued east on Broadway about 8 feet, looked again, and saw the automobile 100 feet away, running due south and still about 4 or 5 feet from the west curb. He continued walking east and had walked 20 feet further, to a point 2 feet west of the west rail of the southbound track, when the automobile struck him. At the time plaintiff was struck he was walking slowly east, at the rate of two or three miles an hour. After he looked for the automobile the second time, he did not see it again until it hit him.

Regarding the facts of the accident, the defendant Frank Schnellman testified as follows:

"I was driving a Ford roadster south on Broadway toward the intersection of Broadway and Montana street, at a rate between 8 or 10 miles an hour. There was a car going north, standing taking air. Nabe came running out of the building. I did not see him until he stepped off the curb and came running out in the street. I saw him, blowed my horn, and turned out, and he stepped back and he must have stepped up. I don't know how, if the rear end of the car hit him or he jumped back. My attention was first called to the fact that there was an accident by my uncle, and then I stopped. I had my car coasting, and I threw on my brakes and stopped, and I looked and saw him, and he was upon his feet then. * * * I was driving just about in the middle, half way between the curb line and the west rail of the south-bound track, when I turned out. When I first saw Nabe he was within a few feet, and stepped up, and I turned out; then he stepped back so I turned out; he stepped up and hit the back end of the machine or fell there; I can't say which. The front end of the machine never struck him."

* * *

On cross-examination he testified:

"I was operating the automobile within 6 or 7 feet of the west curb. There was no automobile standing along next to the curbing. Nabe was out in the street when I first saw him, about 6 feet from the curbing. * * * It is about 20 feet from the curb to the west rail. I was going 8 or 10 miles an hour. Three or four automobiles could pass abreast between the rail and curbing. The day of the accident was a clear day; the street was dry, and I could stop the machine within 3 or 4 feet. I did stop it in 4 feet. Nabe crossed the street 3 or 4 feet south of the general crossing place. When I first saw him he was 6 feet out in the street, and I was running, I guess, 8 feet from the curb, and I made the turn when he was running, and he ran right up to the machine, and I swung the machine out, and he stepped back. I went still further out to miss him, then he stepped back. The front end did miss him, didn't touch him at all. He must have started up again. I don't undertake to say what part of the machine hit him. I will say the front end did not hit him. When I first saw him he was 6 feet from the curb, and my machine was about 8 feet from the curb, but he was running. I threw my car into neutral and turned out towards the car track. I just turned a little bit. He kept coming until he got up almost to my machine and then stopped and stepped back. I had my car in neutral and had the brakes on partly. He ran ahead a little further and stepped back. As he ran ahead I turned out, and then he stepped back, and I cleared him in front. He got up to the car; I turned out, and he stepped back. He did not run clear across the front of the car, he got as far as the right fender, then stepped back, and I swerved out. I did not see him step forward again. Some part of the back of the machine hit him. Whatever hit him was on the right side of the car and on the rear end of it."

A. B. Burkamper, a witness for the defendant, who, at the time of the accident, was sitting in the front seat of the automobile on the right-hand side, gave the following account of the accident:

"We were going south on Broadway, and we got up to these car sheds, and the young man came out—claimed to be a conductor, I think it was—and he walked out on the sidewalk a little ways and then a north-bound car was coming and about that time he started to draw up a little, and I said, `That fellow wants to catch that car.' I expect he was 150 feet or 100 feet when I noticed him coming out of the office. He ran out, came off from the sidewalk, and started over the street, across the street, and in a kind of hurry—kind of a trot. He got close to the machine; the boy shut down and turned to the left. He stepped back a step or two, and the boy put his foot on the gas, and then he came forward for some cause, and he was hit with the machine just as he passed me there. His clothes...

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    • United States
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    ......Althage v. Peoples Bus Co., 8 S.W. (2d) 924; Lewis v. Public Service Co., 17 S.W. (2d) 361; Nabe v. Schuellman, 254 S.W. 734, par. 7; Goodwin v. Eugas, 236 S.W. 53. (b) It is in conflict with plaintiff's instruction on the humanitarian doctrine. ...People's Motorbus Co. (Mo.), 8 S.W. (2d) 924; Lewis v. Public Service Co. (K.C.C.A.), 17 S.W. (2d) 359; Nabe v. Schnellman (St. L.C.A.), 254 S.W. 731; and Goodwin v. Eugas (Mo.), 236 S.W. 50. An analysis of the cases, supra, cited by appellant, discloses that the ......
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