Nordmann v. J. Hahn Bakery Co.

• Citation: 298 S.W. 1037
• Decision Date: 04 October 1927
• Docket Number: No. 19853.,19853.
• Parties: NORDMANN v. J. HAHN BAKERY CO.
• Court: Court of Appeal of Missouri (US)

298 S.W. 1037

NORDMANN v. J. HAHN BAKERY CO.

No. 19853.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Action by William Nordmann against the J. Hahn Bakery Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wilfley, Williams, McIntyre & Nelson, and Wendell Berry, all of St. Louis, for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on September 2, 1924, when the wagon in which he was riding was struck by defendant's automobile truck at Broadway and Wyoming streets, in the city of St. Louis. The verdict of the jury was in favor of plaintiff, in the sum of $3,000, and, from the judgment rendered thereon, defendant has appealed.

The acts of negligence pleaded and submitted to the jury were: First, the operation of the truck at an excessive rate of speed; and, second, violation of the humanitarian doctrine. The answer was a general denial, coupled with a plea of contributory negligence. The reply was in conventional form.

Broadway runs north and south, while Wyoming street, which does not cross, but instead terminates at the west side of Broadway, runs east and west. Measured from curb to curb, the width of Broadway is 51 feet, and of Wyoming street, 36 feet. From the north building line of Wyoming street to the south building line of Arsenal street, the next street to the north, is 415 feet. Approximately in the center of Broadway are street car tracks for north-bound and south-bound cars.

The accident in question occurred shortly after noon. As we have heretofore indicated, plaintiff was riding in a wagon, drawn by a team of horses, and was proceeding north on the east side of Broadway, at a speed of from 2 to 4 miles an hour, with his wagon 3 or 4 feet from the curb. When he was yet a half block south of Wyoming street, plaintiff for the first time noticed defendant's truck, which was standing parked in front of a grocery store at the intersection of Broadway and Arsenal streets. He continued onward until he reached a point as far north as the south side of Wyoming street, when he held out his hand to signify his intention to make a left turn and proceed westwardly on Wyoming street. After he had gone as far north as the middle of Wyoming street, he started to make the turn, and, as he was in the act of crossing over the street car tracks, he looked to the north and observed defendant's truck half a block away, coming southwardly on the west side of Broadway, at a speed which he could not estimate, but designated only as "fast." He did not see the truck again until the moment of the collision, when it struck the right front wheel of his wagon and threw him to the ground.

It was disclosed by the testimony of an eyewitness to the accident that, when the front wheels of plaintiff's wagon were midway between the inner rails of the two street car tracks, defendant's truck was yet 100 feet north of Wyoming street, running at a speed of 27 or 28 miles an hour, with its left wheels upon the south-bound street car tracks. There was other evidence that, from the front wheels of the wagon to the heads of the horses, was a distance of 13 feet, and that the entire length of both horses and wagon was 25 feet. The same witness testified that, when the wagon was struck, its front wheels were practically upon the west rail of the south-bound car track, and that the speed of the truck had meanwhile been increased to 30 miles an hour. It was further shown that, under the existing conditions, and at the speed at which the truck was being operated, it could have been safely stopped within a space of 65 feet, or could have been swerved from its course so as to have avoided striking plaintiff's wagon within a distance 55 feet.

The force of the impact was such that both horses were thrown to the ground, and the horses and wagon caused to face south, whereas they had been facing to the west when struck. It also appears that the wagon was moved 15 or 20 feet by the violence of the collision.

Plaintiff was first taken to the City Hospital, and later to his home. He suffered a laceration and contusion of the right elbow joint, and his lower left chest and abdomen were bruised, as were also his lower limbs. The straining of the muscles and tendons on his left side was of such nature as to prevent him from doing very heavy work, and was a permanent condition in a man of his age. The injuries had been painful, and there was a reasonable probability that he would continue to suffer pain therefrom in the future. In addition, he was found to be suffering from neurasthenia, or nervous prostration, which, other causes therefor being excluded, could have resulted from the injuries he received.

The first point urged by defendant is that the court should have sustained the demurrer to the evidence. Disregarding the issue of failure to warn, which was withdrawn by the court, we shall concern ourselves only with the two remaining issues, negligent speed, and violation of the humanitarian doctrine, both of which were submitted to the jury, and both of which the learned trial judge must necessarily have regarded as having been supported by the evidence.

Upon the issue of primary negligence, defendant does not contend that there was no evidence of excessive speed, but rather argues that plaintiff was precluded from a recovery thereon because of his contributory negligence in starting to turn west off of Broadway into Wyoming street before he had proceeded past the center of the intersection, and in driving his wagon into the path of the oncoming truck when he could have stopped his wagon within the space of one foot. It is true that we have a state statute and an ordinance of the city of St. Louis, both of which require the driver of a vehicle in turning to the left to pass beyond the center of the intersecting street before making such turn. Plaintiff testified, however, in response to a question propounded to him by defendant's counsel, that he did go as far north as the middle of Wyoming street before he started to turn, so that, under the familiar rule governing the consideration of the demurrer to the evidence, we certainly cannot say that he should be adjudged guilty of contributory negligence as a matter of law for a violation of any duty imposed upon him by statute or ordinance. Neither are we impressed with the argument that plaintiff, when he was crossing over the street car tracks, and saw the truck coming towards him, half a block or more than 200 feet away, at a speed which he could not estimate, though he knew it was "fast," was guilty of contributory negligence as a matter of law in continuing onward. So far as he could discern, he was confronted with no unusual situation, and, in fact, his experience was but that which every operator of a vehicle upon the streets of our large cities has many times every day under modern traffic conditions. The fact that he continued onward is evidence that he believed that he could...