Nyberg v. Wells

• Decision Date: 05 March 1929
• Docket Number: No. 20429.,20429.
• Citation: 14 S.W.2d 529
• Parties: NYBERG v. WELLS et al.
• Court: Missouri Court of Appeals

14 S.W.2d 529

NYBERG v. WELLS et al.

No. 20429.

St. Louis Court of Appeals. Missouri.

March 5, 1929.

Rehearing Denied March 20, 1929.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Frances C. Nyberg against Rolla Wells, receiver of the United Railways Company, and another. Judgment for plaintiff, and defendants separately appeal, which appeals were by stipulation consolidated. Affirmed.

Banister, Leonard, Sibley & McRoberts, and Frank P. Aschemeyer, all of St. Louis, for appellant Lumber Company.

T. E. Francis and Byron G. Carpenter, both of St. Louis, for appellant Wells.

Charles B. Williams and Leo P. Ehrhard, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, suffered by plaintiff on February 7, 1925, in a collision which occurred near the plant of defendant O'Neil Lumber Company, at 4420 North Union Avenue, in the city of St. Louis, between one of defendant Wells' street cars, in which plaintiff was a passenger, and an automobile truck owned and operated by the lumber company. The verdict of the jury was for plaintiff, and against both defendants, in the sum of $7,500; and, from the judgment rendered, each defendant perfected a separate appeal. In this court, however, a stipulation was filed, providing that the causes be consolidated, pursuant to which the order of consolidation was made.

Plaintiff pleaded general negligence as to defendant Wells, averring that, while she was a passenger on a north-bound Union avenue street car, the agents and servants of defendant Wells in charge thereof carelessly and negligently caused, suffered, and permitted the same suddenly, unusually, and violently to run into and collide with the truck of the lumber company while it was being driven across the car tracks, directly causing the street car to be violently jarred, jerked, and jolted, and plaintiff to be thrown violently against the sides and seats of the car, and to fall upon the floor, whereby she sustained serious and permanent injuries.

As to defendant O'Neil Lumber Company, there were two assignments of specific negligence left in the case at the time of its submission to the jury: First, that the driver of the truck carelessly and negligently drove it out of the lumber company's private property into Union avenue, and in front of the moving street car, without looking or listening for the approach of the car; and, second, that he unusually, sharply, suddenly, and quickly turned the truck to the left, as a direct result of which the truck was caused to skid in front of the street car, and to collide therewith.

Separate answers were filed by the defendants, each in the form of a general denial. The evidence disclosed that defendant lumber company's plant, located on the east side of Union avenue, had two gates opening upon the street, from 100 to 200 feet apart, the one referred to as the north, and the other as the south, gate. All the witnesses were agreed that the truck emerged upon the street out of the north gate, but as to its movements thereafter, there was a great deal of dispute in the testimony.

Beckman, the chauffeur, called as a witness for plaintiff, testified that he drove directly out into the street, with the intention of going south, and that when he got upon the two car tracks, he started to make the turn in that direction, whereupon the truck began to skid, with the rear and sliding towards the west. Finding himself unsuccessful in his endeavors to control the movements of the truck, he was forced to permit it to take its course; and, without ever leaving the car tracks, it continued to skid downgrade to a point 25 feet north of the south gate, meanwhile having turned so that the front end faced to the east, where it was struck by the north-bound street car. He further testified that he drove out into the street at a speed of 5 or 7 miles an hour; that he looked, but saw no car, as he passed through the gate, but first dicovered the approaching car after he had brought his truck out into the street, and before it began to skid; and that, when the skidding started, the street car was yet 200 or 300 feet away. According to Beckman and several other witnesses, the surface of the street was wet and slippery, but that such condition existed was also pointedly denied.

The substance of the other version of the accident was that Beckman drove his truck directly south in the south-bound track, and that when he came to within 40 or 50 feet of the approaching north-bound street car, which was being operated at a speed of 15 miles an hour, he turned to the left as if to go into the south gate of the lumber yard, moved over squarely onto the north-bound track, and then came to a stop when the street car was only 10 feet away.

Although defendant Wells does not question the sufficiency of the proof to have made a case for the jury as to him, it is seriously urged by counsel for defendant O'Neil Lumber Company that the latter's requested peremptory instruction in the nature of a demurrer to the evidence should have been given. The burden of their complaint is that there was a total failure on the part of plaintiff to prove the specific negligence alleged; that is, either that Beckman carelessly and negligently drove out of his employer's property into the street in front of the street car without looking or listening for the same, or that he was guilty of negligence in unusually, sharply, suddenly, and quickly turning his truck to the left, as a consequence of which it was caused to skid in front of, and collide with, the street car.

Looking to the sufficiency of the proof upon the first of such specifications of negligence, we quite agree with the suggestion of counsel for plaintiff that the gist of the assignment pleaded, and upon which the lumber company was called upon to make its defense, was the act of Beckman in driving in front of an approaching street car. In other words, the real issue between the parties was whether his conduct in this particular was such as to charge him with negligence directly and proximately contributing to the collision and plaintiff's resulting injury, irrespective of whether the truck was driven upon the track from the east or from the west.

Taking the testimony of the witnesses other than Beckman as that most favorable to support plaintiff's recovery, we are entirely convinced that there was ample evidence in the record to sustain the specification of negligence under consideration. Since the two vehicles were approaching each other from opposite directions, and it was the intention of Beckman to make a left turn across the path of the street car, it was undoubtedly his duty so to watch and time the movement of the car as reasonable to insure himself a safe passage to the point of his destination, and certainly it was his duty not to turn into, or across, the course of the car, when the same was so near at hand as to make a collision probable. 42 C. J. 997. Instead of observing such precautions, however, he turned directly across the north-bound track, and stopped his truck thereon, with the on-coming car only 10 feet away, making a collision inevitable under the conditions that existed at the time. Thus, there was substantial evidence adduced tending to convict Beckman of negligence in driving upon the track in front of the approaching car, in view of which the lumber company's requested peremptory instruction was properly refused, regardless of the sufficiency of the proof upon the assignment of negligence predicated upon the skidding of the truck, which we shall later have occasion to discuss in connection with another point for decision.

Closely associated with the argument advanced by defendant lumber company on the question of the demurrer to the evidence is its second point, in which the ruling of the court in connection with the reception of certain evidence is assailed. Proceeding upon the assumption that the assignment of negligence heretofore considered contemplated that Beckman drove upon the track from the east, that is, as he emerged from the lumber yard, counsel for the lumber company consistently, but unsuccessfully, objected to the admission of each and every bit of testimony to the effect that he drove upon the track from the west.

While counsel, in the conduct of the trial, seem to have urged this point as a variance, it is to be observed that they now treat it as a failure of proof. In answer to their argument against the admissibility of the evidence, we merely repeat that the gravamen of the charge was that the...