Polkowski v. St. Louis Public Service Co.

• Decision Date: 06 March 1934
• Citation: 68 S.W.2d 884,229 Mo.App. 24
• Parties: MAX POLKOWSKI (PLAINTIFF), RESPONDENT, v. ST. LOUIS PUBLIC SERVICE COMPANY, A CORPORATION (DEFENDANT), APPELLANT
• Court: Missouri Court of Appeals

68 S.W.2d 884

229 Mo.App. 24

MAX POLKOWSKI (PLAINTIFF), RESPONDENT, v. ST. LOUIS PUBLIC SERVICE COMPANY, A CORPORATION (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

March 6, 1934

Appeal from the Circuit Court of the City of St. Louis.--Hon. H. A Rosskopf, Judge.

Reversed and remanded.

John A Witthaus for respondent.

(1) In passing on the demurrer, plaintiff is entitled to have all the testimony which is favorable to him considered as true and should be allowed every reasonable inference to be drawn therefrom, and when plaintiff in this case is given the benefit of the favorable testimony and such reasonable inference there is ample evidence to sustain the allegations in the petition and to submit the case to the jury. Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 138 S.W. 23, 30; Dorkery v. Woodsmall et al., 11 S.W.2d 1057. (2) There was evidence on the part of the plaintiff to show the failure of defendant to sound a warning, and this failure to sound a gong or warning was alleged in plaintiff's petition, not only as an act of primary negligence, but in connection with the application of the humanitarian rule. Oxford v. St. Louis-San Francisco Ry Co., 52 S.W.2d 983; Riggle v. Wells, 287 S.W. 803, 805; Hill v. Kansas City Railways Co., 233 S.W. 205, 208; McBride v. Wells, 263 S.W. 469, 470; Perry v. Fleming, 296 S.W. 167, 176. (3) The court did not err in refusing to give defendant's requested Instruction B because from the facts in evidence, considered in the light most favorable to plaintiff, there was evidence from which the jury could say that defendant failed to keep a proper watch ahead for pedestrians approaching its street car track. La Pierre v. Kinney, 19 S.W.2d 306, 311; Grossman v. Wells, 282 S.W. 710, 714; Schroeder v. Wells, 276 S.W. 60, 64. (4) The court properly refused to give defendant's requested Instruction C, wherein it sought to withdraw from the jury's consideration that assignment of negligence in plaintiff's petition charging defendant with liability, under the humanitarian rule. Capone v. Wells, 261 S.W. 945, 947; Mazzolla v. Wells, 270 S.W. 412; Zlotnikoff v. Wells, 295 S.W. 129, 131; Hill v. Kansas City Railways Co., 233 S.W. 205, 208; McBride v. Wells, 263 S.W. 469, 470. (5) There was ample evidence from which the jury could have found that defendant's street car was being operated at a high and excessive rate of speed, and at a rate of speed which, under the circumstances, was negligent, and the court did therefore not err in refusing to give defendant's requested Instruction D. Decker v. Wells, 272 S.W. 1064, 1065; Heschenroeder v. Kansas City, C. C. & St. J. R. R. Co., 278 S.W. 1071, 1072; Cox v. Reynolds, 18 S.W.2d 575, 578.

T. E. Francis and S. G. Nipper for appellant.

(1) The court erred in failing to give to the jury defendant's requested Instruction C, wherein it is sought to withdraw from the jury's consideration that assignment of negligence in plaintiff's petition charging defendant with liability under the humanitarian rule for failure to stop the street car, slacken the speed or sound a warning, and this assignment of negligence should have been withdrawn. Bibb v. Grady, 231 S.W. 1029; Wilson v. Washington Flour Mill Co., 245 S.W. 205; Fleming v. Railroad, 263 Mo. 180. (2) The court erred in submitting the case to the jury upon a measure of damage instruction only, because under such circumstances it was necessary for plaintiff to make a case for the jury under each and every assignment of negligence in his petition and this he failed to do. Willis v. Applebaum, 26 S.W.2d 853; Crossno v. Terminal Ry. Association, 41 S.W.2d 796; Hollensbee v. Pevely Dairy Co., 38 S.W.2d 273.

McCULLEN, J. Becker, J., concurs; Hostetter, P. J., not sitting.

OPINION

McCULLEN, J.--

This is a suit for damages for personal injuries alleged to have been sustained by respondent, hereinafter referred to as plaintiff. Bernice Dailey and the St. Louis Public Service Company were named as defendants in the petition. A trial before the court and a jury resulted in a verdict for plaintiff and against both defendants, in the sum of $ 706. Defendant St. Louis Public Service Company, hereinafter referred to as appellant, has appealed.

Plaintiff's petition alleged that on the 9th day of December, 1924, plaintiff was a pedestrian upon the traveled portion of Cass Avenue, at or near Thirteenth Street, both open and public streets in the city of St. Louis, Missouri; that he was crossing Cass Avenue from the north to the south side thereof when he was struck by an automobile owned and driven by defendant Bernice Dailey, then being operated westwardly on Cass Avenue, and was also struck by an eastbound Cass Avenue street car owned and operated by the St. Louis Public Service Company, and as a result of being so struck he was seriously and permanently injured.

The negligence charged against the appellant was set forth in five assignments in plaintiff's petition. They were as follows: (1) Negligently operating its street car at a high and excessive rate of speed; (2) failure to keep a watch ahead for pedestrians in and approaching its street car track; (3) failure to sound a gong or other warning of the approach of the street car; (4) failure to stop the street car when the operator in charge thereof could have seen that plaintiff was likely to be caught and trapped between the westbound automobile and the eastbound street car; (5) negligence under the humanitarian doctrine for failure to stop the street car, slacken its speed, or sound a warning of its approach.

Defendant Bernice Dailey filed a separate answer containing a general denial and a plea charging plaintiff with contributory negligence.

The answer of appellant was a general denial.

Appellant assigns as error the action of the trial court in overruling its instruction in the nature of a demurrer to the evidence at the close of the case, and in refusing to give its Instructions A, B, C and D, wherein it sought to withdraw from the consideration of the jury four of the five assignments of negligence alleged in the petition.

Appellant insists that there was no evidence to support the above mentioned assignments of negligence.

The evidence shows that Thirteenth Street and Cass Avenue are public streets in the City of St. Louis, the first named running north and south, and the other, east and west. There were two sets of appellant's street car tracks in Cass Avenue, one for eastbound street cars south of the middle of the street, and the other for westbound cars north of the middle of the street. The distance between the outside rails of the two sets of tracks was fifteen feet.

Plaintiff called as his witness, defendant Bernice Dailey. She testified that about eight o'clock in the evening on the date mentioned, she was operating a Chevrolet coupe westwardly on Cass Avenue, towards Thirteenth Street. She did not know whether her automobile was straddling the north rail of the westbound street car track, or was to the north thereof. She testified that she saw plaintiff when he left the side of the building on the northeast corner of Thirteenth Street and Cass Avenue, and saw him run across Cass Avenue from the north side toward the south. At that time her automobile, she judged, was about twenty-five feet east of Thirteenth Street, and going at about fifteen miles an hour. She stated that plaintiff was running at a moderate rate of speed; that Cass Avenue was about fifty feet wide, and a hard surfaced street. She said that when plaintiff got about to the eastbound street car track, he started to run back; that she tried to avoid hitting him and turned her automobile to the south; that plaintiff was then practically on the left fender of her car; that the left front fender of her car struck plaintiff and carried him along until her automobile came in contact with the left front end of the street car. She was unable to give any estimate of the distance in which her automobile could have been stopped, and was also unable to state just what distance plaintiff was carried on the fender of her car before it came in contact with the street car. She testified that the street car was stopped on the west side of Thirteenth Street before the accident happened; that she noticed that the street car was in that position when she was about twenty or twenty-five feet east of Thirteenth Street, when plaintiff started to run across the street. She did not remember whether she sounded any horn as she approached Thirteenth Street. She stated that she saw the street car start across Thirteenth Street after she had seen it in a stationary position there, but she said she did not know where the street car stopped thereafter; that her automobile was against the front end of the street car when both came to a stop.

On cross-examination this witness was asked concerning the manner in which plaintiff was struck, and testified:

"Q. Did you strike him, or did he just step back into the side of the car? A. Stepped back into the side of my car."

When asked whether or not the street car was moving after plaintiff stepped back into the side of her car, the witness said she did not know.

Henry G. Fuchs, appellant's motorman who was in charge of the street car involved in the accident, was called as a witness for plaintiff. He testified that he was in charge of the street car eastbound in Cass Avenue; that when he first saw plaintiff, the street car was standing at the west side of Thirteenth Street, unloading passengers; that plaintiff was then standing on the sidewalk on the northeast corner of the intersection of the two streets, about two feet from the curbing on Cass Avenue. The witness said there was an automobile coming west about that...