Perrin v. Wells
| Decision Date | 07 January 1930 |
| Docket Number | 20846 |
| Citation | 22 S.W.2d 863 |
| Parties | PERRIN v. WELLS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.
“ Not to be officially reported.”
Action by Ivy Perrin against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
T. E Francis and B. G. Carpenter, both of St. Louis, for appellant.
George W. Barker and Kurt Von Reppert, both of St. Louis, for respondent.
This action arose out of an injury plaintiff sustained on the morning of May 30, 1925, when the automobile in which she was riding was struck by one of the street cars operated by the defendant. The trial below resulted in a verdict and judgment in favor of plaintiff in the sum of $1,000, from which judgment this appeal is prosecuted.
A number of errors are presented by the defendant, the first of which is that the court erred in failing and refusing to give the defendant’s instructions in the nature of demurrers to the evidence, offered at the close of the plaintiff’s case and at the close of the whole case.
The evidence in behalf of plaintiff was to the effect that on the morning of the accident her husband drove the automobile in which she was riding to a grocery store located on the east side of Sarah street in the city of St. Louis, near the corner of the intersection of Sarah street and Enright avenue; that her husband parked the automobile at the east curb of Sarah street, a short distance north of the north building line of Enright avenue, and she went in and made her purchases; that as she came out of the grocery store she looked to the south and saw a north-bound street car approaching; that the street car was then about two blocks south of the automobile; that she walked across the sidewalk and took the rear seat of the automobile; that the engine of the automobile was already running when she got into the car that her husband, the driver, asked her to look out to see whether the car was coming, and she informed him that it was not; that she did not see the street car at this time, and that her husband then started slowly to leave the curb, proceeding northwardly, and the wheels of the automobile had just gotten beyond the west line of an automobile parked in front of their automobile, when the street car struck their machine, threw their auotmobile against the one parked in front of theirs, and that automobile in turn was thrown upon the sidewalk; that she heard no gong; that the distance between the curb and the car track at the point where the automobile was parked was very narrow; that there was just enough room for a north-bound street car to pass an automobile parked at the east curb; that plaintiff did not see the street car again until the collision occurred.
The plaintiff’s husband testified that, when his wife returned from the grocery store and entered the automobile, he asked her to look out and see if any street cars were coming from the south, and she replied that she was ready and that everything was all right; that he looked around, and everything was clear; that in order to reach the street car track it was necessary for the automobile to travel a distance of about 2 or 3 feet; that witness put out his left hand as a signal and started immediately out onto the tracks; that he heard no gong or bell, and that the front end of his automobile was on the car tracks at the time of the collision; that the street car hit the left rear end and side of the automobile; that his wife assumed him that "everything is clear, go ahead"; that he also looked back, but saw no street car approaching. On cross-examination he testified that he thought his wife said a car was coming, but it was way back; that he then looked back himself, but did not see any street car; that at the time of the collision the street car was traveling at about 25 miles per hour.
One disinterested witness testified in behalf of plaintiff that he was a passenger in the street car at the time of the accident, and was seated about four seats from the front of the car. He saw plaintiff’s automobile parked at the east curb of Sarah street, facing north, a few feet north of the north building line of Enright avenue; that the street car did not stop before crossing Enright avenue, and that no gong was rung as it crossed that street; that the street car was traveling about 15 to 20 miles per hour prior to the collision; that the street car moved about half a block after the collision; that he did not notice the automobile as it left the curb, and could not say how far away the street car was at this time.
Another disinterested witness for the plaintiff testified that he was standing on the east side of Sarah street near the point of collision; that he saw the automobile pull away from the curb as the street car was crossing Enright avenue; that the street car was going at a pretty good rate, and that it traveled about 40 feet after the collision.
The defendant introduced testimony in contradiction of that offered by the plaintiff, thus resulting in a conflict in the evidence, which the court was bound to submit for determination by the jury. Crowley v. St. Louis-S. F. Ry Co. (Mo. App.) 18 S.W.2d loc. cit. 543, and cases cited; Stewart v. American Ry. Exp. Co. (Mo. App.) 18 S.W.2d loc. cit. 525; Maiden v. Fisher (Mo. App....
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