Ostermeier v. Kingman-St. Louis Implement Co.

• Decision Date: 17 February 1914
• Citation: 164 S.W. 218,255 Mo. 128
• Parties: OSTERMEIER v. KINGMAN-ST. LOUIS IMPLEMENT CO.
• Court: Missouri Supreme Court

164 S.W. 218

255 Mo. 128

OSTERMEIER v. KINGMAN-ST. LOUIS IMPLEMENT CO.

Supreme Court of Missouri, Division No. 2.

February 17, 1914.

1. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREET—INJURIES BY AUTOMOBILE.

The driver of an automobile, who runs his car with the hood up backward from a garage and circles around into the middle of the street, and there strikes a street sweeper, is, as a matter of law, negligent, where he is looking in the opposite direction from which he is going, though he blew the horn when he started, when he was on the sidewalk, and just as he entered the street.

2. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREET—INJURY BY AUTOMOBILE—CONTRIBUTORY NEGLIGENCE.

A street sweeper in the middle of a street, struck by an automobile backing from a garage, is not guilty of contributory negligence because he kept his eyes on his work, though the driver blew his horn when he started, when on the sidewalk, and just as he entered the street, as such signal was no notice to him that a car was circling around to run over him in the middle of the street.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Charles Ostermeier against the Kingman-St. Louis Implement Company, a corporation. From a judgment for $3,500 in favor of plaintiff, defendant appeals. Affirmed.

On October 13, 1909, and for two years prior thereto, the plaintiff was a street sweeper or scraper, working back and forth on Ninth street for several blocks in front of defendant's garage, which was at 2117, on the west side of Ninth street. He was about 78 years of age and was getting a dollar and a half per day. The petition contained the following: "That on said date defendant was the owner of a certain automobile, which at the time was in the possession of a servant and employé of defendant, who was then and there driving the same. That, while plaintiff was so engaged in the discharge of his duty, the said automobile, so in charge and possession of the servant and employé of the defendant, was backed out of a building across the sidewalk, down on Ninth street, and was negligently and carelessly run against and over plaintiff. That said person in charge of and running said automobile, did not give plaintiff any warning of the approach thereof, did not look or endeavor to ascertain whether or not plaintiff or any other person was on the street in the rear of the automobile, but without any warning ran the same against plaintiff, and with great violence and force threw plaintiff upon the ground, breaking his nose, wounding his head, side, and knee, and dragging plaintiff under said automobile along and over the ground a distance of more than 18 feet, bruising and wounding him as aforesaid, and has ever since said time prevented him from attending to his business or any other business, has caused him great pain and suffering, has put him to great expense in endeavoring to be healed of his wounds. And plaintiff states that he is permanently injured by reason of the conduct of defendant."

And the answer the following: "And, further answering, defendant alleges that such injuries as the plaintiff sustained at the time laid in the petition were produced and caused solely by the plaintiff's own negligence in failing to use ordinary care for his own safety while in the discharge of his duties as an employé of the city of St. Louis, engaged in cleaning and sweeping streets as alleged; that plaintiff negligently and carelessly failed to observe the slow approach of defendant's automobile toward him, which, by the exercise of ordinary care, he could have seen, until the same drew near where he was standing; that the plaintiff negligently and carelessly failed, after hearing the whistle of the said automobile and seeing the same so approaching, to exercise any diligence in moving out of the path thereof or in any other manner protecting himself, and negligently and carelessly failed to apprise the defendant of his presence upon the street in the rear of said automobile after plaintiff heard and saw said automobile and its approach toward him, or by the exercise of ordinary diligence could have heard and seen the same so approaching him."

The circumstances of the injury were stated by plaintiff in his testimony as follows: "Q. Were you standing when you were struck by the machine? A. I was standing—I was scraping right along, you know, to the south. I was looking to the south, you know. Q. On Ninth street? A. On Ninth street. Q. About how far were you from the car track? A. It must be about two or three feet, you know. Q. Which side of the track were you on? A. Well, I think I was on the west side. If I ain't mistaken, it was on the west side. Q. Well, now, is the car track about the center of Ninth street? A. Yes, sir. Q. About how far is the garage from the place where you were standing? A. What do you say? Q. About how far is this shed out of which the chauffeur backed his machine from the place where you were standing? A. I can't tell just exactly. It might be about 50 or 60 feet, you know, maybe a little more. I don't know just exactly, you know. Q. What direction was your face turned? A. Well, I don't know; I was scraping, you know. Q. What? A. I was scraping, and then they hit me in the back and right down on my face. Q. Which direction were you looking? A. Looking to the south. Q. Which direction was the shed from where you were standing? A. It was a little bit kind of northwest."

Defendant's chauffeur testified that when he first saw the plaintiff he was lying crosswise under the rear axle and across the street car track. Plaintiff testified that his head was injured and the arm broken and his whole side blackened, and that at the time of the trial it hurt him to lift his arm, and that he had pains in his head and eyes, and that he could not sleep well but would shake. He said, "Sometimes it gets me in the head or the back of my neck and I jump, you know."

The testimony of the chauffeur and of other witnesses for the...