Phillips v. East St. Louis & S. Ry. Co.

• Decision Date: 01 April 1924
• Docket Number: No. 17958.,17958.
• Citation: 260 S.W. 766
• Parties: PHILLIPS v. EAST ST. LOUIS & S. RY. CO.
• Court: Missouri Court of Appeals

260 S.W. 766

PHILLIPS v. EAST ST. LOUIS & S. RY. CO.

No. 17958.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by James Phillips against the East St. Louis & Suburban Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Holland, Rutledge & Lashly, of St. Louis, for appellant.

Edward W. Foristel and O. J. Mudd, both of St. Louis, for respondent.

BRUERE, C.

This is an action to recover for personal injuries received by the plaintiff in a collision on a public crossing, between an interurban street car owned and operated by the defendant and an automobile truck driven by plaintiff. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff for $5,000, and defendant has appealed.

The petition charges that the collision was due to negligence on the part of the defendant (appellant here), in the following particulars:

First: That the motorman in charge of said car failed to keep a vigilant watch for vehicles on the track or moving toward it, and failed on the first appearance of danger to plaintiff and his said automobile truck to stop said car in the shortest time and space possible.

Second: That at and prior to the time said street car was so run against and upon said automobile truck said car was being run by defendant at a high and excessive rate of speed, and at a rate of speed which was dangerous to persons and vehicles on the street, particularly plaintiff and his said automobile.

Third: That defendant's said motorman saw, or by the exercise of ordinary care could have seen, plaintiff's automobile in a position of great and imminent peril of being struck by said car, in time thereafter, by the exercise of ordinary care with the means and appliances at hand and with reasonable safety to the persons on said car, to have stopped said car or slackened the speed thereof, so as to avoid a collision, but that said motorman failed to do so.

Fourth: That while said street car was approaching said intersection defendant's agents in charge thereof failed to give plaintiff any signal or warning of the approach of said street car.

The facts in the case are these: The collision occurred on the morning of August 8, 1921, between 7 and 8 o'clock, at the intersection of State street with Twenty-Ninth street, in the city of East; St. Louis, Ill. Defendant maintains two street car tracks on State street, upon which interurban electric cars run east and west; the west-bound cars running on the north track and the eastbound cars running on the south track. Twenty-Ninth street runs north and south and is about 400 feet west of Thirtieth street. State street, for several blocks east and west of Twenty-Ninth street, is a straight and level street. The collision occurred between a west-bound car and the automobile truck, while said truck was proceeding northwardly on the east side of Twenty-Ninth street. Plaintiff was operating the automobile from the left side of the cab seat. On the occasion in question the cab was open. Willis F. Carl was sitting to the right of plaintiff, and Richard Avery sat behind him on the edge of the body of the truck.

As to the facts and circumstances attending the accident, the plaintiff, on direct examination, testified as follows:

"It was a dry sunshining morning; a clear morning. The streets were dry. I was driving out State street going something like 8 or 10 miles. When I got to Twenty-Ninth street I changed the course of my machine. Mr. Carl and Mr. Avery were going to get off at Twenty-Ninth and State street. Before I made the turn I looked east towards Belleville. At the time I looked I was 15 to 20 feet from Twenty-Ninth street and saw a street car something like 400 feet east of Twenty-Ninth street. There used to be a sign there; I don't know whether it is taken down or not. There used to be a stopping place there. That is a usual stopping place for Thirtieth street there. The car was 400 feet east of Twenty-Ninth street before I first saw it. When I saw the car it was east of the stopping place. It had not quite gotten to the stopping place. I saw three ladies or girls standing at the stopping place where the street car stopped to take on passengers. Before making the turn I gave him my left-hand signal, for the parties who were coming behind me that I was going to make a turn; stuck out my left land, signifying in the rear I was going to make a turn. By this time I had gotton into Twenty-Ninth street. I did not look right at that present time. When I looked just 15 feet before that I was going then about 8 miles an hour and saw the car over 400 feet away. That is when I started to make the turn, just when I gave my signal I was going to make the turn. After I made the turn I slowed down the machine to something like 4 or 5 miles an hour. I made a left-hand turn and went north. I made a kind of square turn, turned north. From that point to the north rail of the west-bound car track is about 40 feet, 30 to 40 feet, something like that. At the time I started to make that turn the street car was over 400 feet. Before I was attracted to anything, I got with my front wheels of my truck right in about the middle of the west-bound track. I was then going about 4 miles an hour and then looked east again and saw the street car about 100 to, 120 feet east of the east line of Twenty-Ninth street. That would make it about 125 feet from the truck. When I saw the street car 125 feet away it was going 50 miles an hour. I stepped on the gas and got the cab over the north-bound rail, which would be about 6 or 8 feet I moved. I mean with the wheel in the middle of the west-bound track, from there until I got the wheel and the cab over the rail was from 6 to 8 feet. The time that elapsed after I saw the street car 125 feet away until it hit me was no more than the snap of your finger. State street is paved with brick and is about 66 feet wide from building line to building line. I was driving east on State street in the space between the curb on the south side of State street and the south rail of the east-bound track. No part of my machine was straddling the rail. I was very near the east line of Twenty-Ninth street (witness indicated the place by putting an x mark on plat) when I made the turn, something like that. I was something like 20 or 30 feet down there (witness indicated the place by putting a B mark on a plat) when I put out my hand indicating that I was going to make the turn. After the street car hit me I remember I got up, and when I got up I was over on the sidewalk in front of a residence gate something like 30 or 40 feet west of Twenty-Ninth street. My truck was standing at least 45 feet further west than I was."

Cross-examination:

"I have been acquainted with the St. Louis & Suburban Railroad track there as long as I have been in East St. Louis, which is about 11 years. During said time they have run those big interurban cars over there from Belleville to East St. Louis and over the bridge to this side of the river. I have ridden over that line from Belleville to East St. Louis on this same track probably 50 times in the 11 years. I was driving a Reo truck at the time of the accident. I can stop this truck, when going 4 or 5 miles an hour, practically instantaneously. From the time I got on State street and started east, I traveled about four blocks until the accident happened, and during that time I was driving between the south rail of the east-bound track and the south curb. During all this time the lay of the land there was such that I could see several blocks ahead of me. It was practically level there for a good many blocks. When I first saw that car that eventually struck my truck it was some 400 feet off. This was just about the time I put my hand out to indicate I was going to turn to the left. I showed on the plat, that Mr. Foristel showed me, and made the letter B thereon, indicating the point where held out my hand to indicate I was intending to turn. That point (point marked B) is about 20 or 30 feet west of the west curb of Twenty-Ninth street. At the moment I held out my hand I observed the street car off there a little over 400 feet east of me. I ran with my hand held out, or after I first held out my hand until I began to swerve the machine to the north, up to here, at the point I put that x mark south of the south rail. Then I took hold of the wheel with both hands and made my turn. The look that I gave, of this point B as I have marked it on the plat, was the last look I gave towards the east until my front wheels were in the middle of the track on which was struck. At the point B I ceased to look at the car then. I guarded myself from the rear. I started to tell Mr. Foristel, I figured I had plenty of time. I looked at the point here marked B. Then I gave my attention to holding out my hand. I had plenty of time. The next look I gave to the east was when my front wheels were in the middle of the track on which I was struck. That is correct to the best of my knowledge. To the best of my...