Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co.

• Decision Date: 06 February 1934
• Docket Number: No. 22556.,22556.
• Citation: 67 S.W.2d 793
• Court: Missouri Court of Appeals
• Parties: PAPPAS PIE & BAKING CO. v. STROH BROS. DELIVERY CO.

67 S.W.2d 793

PAPPAS PIE & BAKING CO. v. STROH BROS. DELIVERY CO.

No. 22556.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Rehearing Denied February 21, 1934.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be published in State Reports."

Suit by the Pappas Pie & Baking Company against Stroh Brothers Delivery Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

E. H. Schwarzenbach and Case, Voyles & Stemmler, all of St. Louis, for appellant.

Allen, Moser & Marsalek, of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries and for loss arising from damage to a truck resulting from a collision between an automobile truck belonging to appellant, plaintiff below, and an automobile truck belonging to respondent, defendant below. Plaintiff's petition was in two counts. A trial before the court and a jury resulted in a verdict and judgment in favor of defendant on both counts of plaintiff's petition. Plaintiff appeals.

The first count of plaintiff's petition alleged that on or about the 19th of March, 1929, at about 5 o'clock a. m., plaintiff's employee Sam Andros, in the course of his employment, was driving plaintiff's automobile truck north on the east side of Thirteenth street, across its intersection with St. Louis avenue, both public streets in the city of St. Louis, Mo., and that when plaintiff's truck was in the intersection, defendant, by its employee, negligently drove its automobile truck westwardly on St. Louis avenue, and across said intersection upon and against plaintiff's truck, causing plaintiff's truck to be overturned and plaintiff's employee to be injured.

The petition contained eight assignments of negligence in each of the two counts, but we shall refer only to those involved in this appeal.

Plaintiff's second assignment of negligence charged that plaintiff's truck had entered said intersection when defendant's truck had not yet reached it, but was some distance to the east thereof, and that defendant negligently failed to yield the right of way to the driver of plaintiff's truck, but proceeded into the intersection before plaintiff's truck had a reasonable opportunity to pass in front of defendant's truck.

The eighth assignment of negligence in the petition charged defendant with violation of an ordinance of the city of St. Louis, providing that the operator of a vehicle should have the right of way over the operator of another vehicle approaching from the left on an intersecting street, and should give the right of way to the operator of a vehicle approaching from the right on an intersecting street, and that the right of way should mean the right to proceed when two or more vehicles reach the intersection at approximately the same time.

The petition alleged that plaintiff had paid its employee compensation under the law and thereby became subrogated to said employee's right against defendant by reason of the employee's injuries.

The first count of the petition concluded with a prayer for $5,000 damages against defendant.

The second count of the petition contained the same general allegations and the same assignments of negligence set forth in the first count, and alleged that by reason of defendant's negligence, plaintiff's truck was completely destroyed and demolished, for which plaintiff prayed damage against defendant in the sum of $400.

Defendant's amended answer contained a general denial coupled with a plea of contributory negligence, in which defendant alleged that the driver of plaintiff's automobile truck negligently operated it northwardly on Thirteenth street at an excessive and dangerous rate of speed under the circumstances and conditions then existing, negligently failed to look for and observe traffic moving westwardly on St. Louis avenue, negligently failed to give adequate warning of the approach of plaintiff's automobile to said intersection, and negligently violated an ordinance of the city of St. Louis by failing to give the operator of defendant's truck the right of way, although it was his duty to do so inasmuch as defendant's truck reached said intersection first, which was known to plaintiff's driver, or by the exercise of the highest degree of care on his part could have been known to him.

Plaintiff in its reply denied the allegations in the amended answer.

Sam Andros, the driver of plaintiff's truck, testified that on the morning in question, at about 4:45 o'clock, he left his employer's place of business at 2109 North Fourteenth street, drove east one block to Thirteenth street, then north on Thirteenth street; that just before coming to St. Louis avenue, he slowed down to 4 or 5 miles an hour; that before he started to slow down the speed of his truck he was driving 15 miles an hour; that before he approached the intersection he looked west, and then looked east, and did not see anything coming and kept going at 4 or 5 miles an hour north across the intersection. He testified that when he first saw defendant's truck it was about 3 feet to the east of plaintiff's truck, which was then in the middle of the street car line; that there is but one set of street car tracks on St. Louis avenue at this point, and that the tracks were closer to the north side than to the south side of the street. At this point the witness testified: "When I first saw the Stroh Bros. delivery truck I was going about four or five miles an hour to the north and he tried to cut right in front of me and hit my right radiator and fender and knocked it over to the car line. My truck was tipped over by the impact. My truck turned over on its right side, the front end facing south."

The witness said that there was no other traffic in the intersection at the time the accident occurred; that the defendant's driver gave no warning, sounded no horn, and that the lights on defendant's truck were not burning; that when the accident occurred the front end of plaintiff's truck was about 8 or 10 feet south of the north curb line of St. Louis avenue, and at that time defendant's truck was traveling on the north side of St. Louis avenue, with its left wheels between the street car tracks; that Thirteenth street and St. Louis avenue were each about 35 or 40 feet wide; that when he first saw defendant's truck it was about 2 or 3 feet to the east side of plaintiff's truck, about 2 feet from his right fender; and that defendant's truck was being driven 35 to 40 miles an hour.

The witness stated he had never seen defendant's truck prior to the accident; that he based his testimony as to its speed of 35 or 40 miles an hour upon the fact of seeing it travel 2 or 3 feet.

He testified that the whole radiator of plaintiff's truck was bent in, knocked back, and demolished, and the right fender was damaged as a result of the accident; that he did not sound a horn as he approached the corner; that the windshield of plaintiff's automobile was broken and that he was cut by the glass; that the truck he was driving was a 1926 Ford; that as he approached St. Louis avenue, driving north on Thirteenth street, he was 4 or 5 feet from the curb on his right side; that he did not know what part of defendant's truck hit him. He testified that after the accident plaintiff's truck was facing south, just the opposite direction from which it had been going, and that defendant's truck was turned around and headed east, and was about 3 or 4 feet from the northwest curb of St. Louis avenue; that plaintiff's truck was about 12 feet long.

This witness further testified that when he approached the intersection and was about 7 or 8 feet therefrom, he looked towards the east, but that he was farther back when he looked west. There is some confusion in the witness' testimony at this point, for he later testified that he was about the same distance from the intersection when he looked both east and west. He testified that there was a small building on the west, and that he could see out west, but that a big building on the east obstructs the view to the east; that when he was about 6 or 7 feet from the intersection he could see down St. Louis avenue about one block, and that he looked west and did not see anything, then looked east and did not see anything, then proceeded across the street, continuing to look north, and never looked east or west again after that; that he saw no traffic of any kind in any direction at that time either on Thirteenth street, or on St. Louis avenue.

The witness testified that driving 4 or 5 miles an hour under the conditions then existing, with safety to himself and with the appliances at hand, he could stop plaintiff's truck in 3 feet; that going 10 or 15 miles an hour, under the same conditions, it could be stopped in about 6 feet. He said his brakes were in good condition on that morning; that when he saw defendant's truck 2 or 3 feet to his right, he just kept going.

He further testified that when the impact occurred the back end of plaintiff's truck was about 9 feet past the center line of St. Louis avenue, and the front end was about 6 feet from the north curb line of St. Louis avenue.

Elmer H. Zimmerle, driver of defendant's truck, testified that on the morning in question he was proceeding westwardly on St. Louis avenue, and when he got to Thirteenth street, he saw headlights coming and slowed up; that he threw his automobile into second gear and proceeded across Thirteenth street, and that when he got pretty nearly across he saw that the driver of plaintiff's truck was not going to stop, and that plaintiff's truck hit the left rear wheel of his truck. He testified that when he saw the other truck was not stopping, he "kind of swerved" about 3 feet, but it was too late; that the left rear wheel and fender of defendant's truck was hit by the radiator and fenders of plaintiff's truck; that plaintiff's truck hit defendant's truck and swerved it to the north, causing it to be faced back east...