Nabe v. Schnellman
Court | Court of Appeal of Missouri (US) |
Citation | 254 S.W. 731 |
Docket Number | No. 17668.,17668. |
Parties | NABE v. SCHNELLMAN et al. |
Decision Date | 02 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.
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:
* * *
On cross-examination he testified:
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:
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Smith v. Wells, 28495.
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