Pollinger v. Messerschmidt

• Decision Date: 05 February 1924
• Docket Number: No. 18258.,18258.
• Citation: 260 S.W. 804
• Parties: POLLINGER v. MESSERSCHMIDT.
• Court: Missouri Court of Appeals

260 S.W. 804

POLLINGER v. MESSERSCHMIDT.

No. 18258.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Barbara Pollinger against Philip Messerschmidt. Judgment for plaintiff, and defendant appeals. Affirmed.

George Eigel and M. U. Hayden, both of St. Louis, for appellant.

Curlee & Hay and Glen Mohler, all of St. Louis, for respondent.

BECKER, J.

Defendant appeals from a judgment in the sum of $6,000 rendered against him and in favor of the plaintiff for personal injuries alleged to have been sustained by her as the result of her having been knocked down and dragged by defendant's automobile.

As to the assignments of negligence set out in plaintiff's petition, it is sufficient for the purposes of this appeal to state that she pleaded and submitted her case to the jury under the humanitarian doctrine.

The answer of the defendant in addition to a general denial alleged that the plaintiff was guilty of contributory negligence in that "on said occasion, after alighting from the street car mentioned in said petition, and while on the street, the plaintiff failed to exercise ordinary care to see, or otherwise learn, of the approach of the defendant's automobile and to avoid being struck by same." The reply was conventional.

Defendant urges as his first assignment of error that plaintiff failed to make out a case under the humanitarian doctrine in that the plaintiff wholly failed to establish that she was in any position of danger of being struck by the defendant's automobile for a sufficient length of time before she was struck, for defendant, in the exercise of ordinary care, to have either known of that fact or to have, by the exercise of such care, avoided injuring her, and for that reason the trial court erred in overruling the instruction in the nature of a demurrer offered by defendant at the close of the entire case. This point is without merit.

Essential facts that may be viewed as being undisputed are that the plaintiff was a passenger on a west-bound Cherokee street car on Gravois avenue in the city of St. Louis, and that she, together with four or five other passengers, alighted therefrom at a point opposite Sts. Peter & Paul Cemetery; that Gravois avenue at this point runs in a northeasterly and southwesterly direction and has on it double street car tracks; that, at the time plaintiff and said other passengers got off the car at the front door thereof, there were three automobiles standing one behind the other between the north rail of the west-bound street car track and the curb of Gravois avenue, the front of the first of these automobiles being but 2 or 3 feet back of the front exit door of the street car; that plaintiff and the other passengers, after stepping into the street from the said car, stood there while the street car passed on in front of them; that each of them intended to cross over the street to the east side thereof to the entrance to the cemetery when the car should have passed; that when the street car had moved on so that the rear end thereof was a few feet beyond said passengers three of them started to walk to the east side of the street, at which time the defendant, who was driving the last of the three automobiles mentioned above, and while the two automobiles in front of him remained standing still, drove his car from out behind the said two automobiles intending to pass them; that the defendant's automobile was at that time distant from the plaintiff and the other passengers some 30 to 35 feet; that he drove his automobile onto the west-bound car track until his left wheels were between the rails thereof, and then drove south in the car tracks until he reached a point close to plaintiff when he turned his car to the west, struck plaintiff knocking her down and dragging her a distance which, according to plaintiff's witnesses, was some 25 or 30 feet, but according to defendant's witnesses some 2 to 4 feet.

Plaintiff herself testified that she was a married woman 30 years of age, and that at the time of the accident, and for some time previous thereto, she had been working steadily for the Curlee Clothing Company as a piece worker and earned from $20 to $29 per week; that in addition thereto she attended to her household duties, did the family washing, and took care of her two children, and that she had always theretofore been a healthy woman and had never met with any prior accident; that on the day in question, accompanied by a Mrs. Orso, she started on her trip to the cemetery; that when the street car reached their destination several passengers got off at the front exit ahead of her, and that as Mrs. Orso got off she followed; that at the time she stepped into the street, facing toward the west side of the street, she noticed there were three automobiles standing next to the curb, the first of them a little back of the front end of the car; that she was trying to get hold of Mrs. Orso's arm and that when she had made a "second step the street car was running and I heard hollowing `Stop! stop!' and I looked around and saw the machine in front of me and before I had a chance to lift my hand he knocked me down." Questioned as to how far the machine was away from her when she looked around and saw it, she answered: "I just saw it in front of me."

On cross-examination she was asked whether after she had gotten off the car and had turned around to face the street car, whether she had stepped "back west," she answered: "I don't remember; I made a step or two."

"Q. Which way did you step? A. Stepped to the side of the car.

"Q. By that you mean to the west? A. Yes, sir."

Mrs. Theresa Schelp, a witness for plaintiff, testified that she was one of the passengers who stepped off of the car just ahead of the plaintiff; that she was accompanied by her little daughter and a Mrs. Rausch; that they —

"had all gotten on to the street and were waiting for the car to pass to cross the street and as soon as the car started to go an automobile came down out of line and struck this lady. * * * Two automobiles were in front of him and he was third and as soon as the car started to run past he started to run past the two cars."

She further testified that when the defendant started out from behind the other automobiles he was distant from plaintiff and the balance of the other ladies, "some 30 or 32 feet"; that when she saw defendant's automobile coming she and her little girl and Mrs. Rausch stepped onto the car track and stood still while the plaintiff and Mrs. Orso were a couple of steps behind them, and that defendant's automobile struck plaintiff down and dragged her some 25 or 30 feet. She testified that defendant's automobile was being driven "fast," but she could not tell bow many miles per hour. She stated:

"He just came right on; there was nothing between us ladies, as we stood there as we got off, and this man and his machine to keen him from seeing us."

On cross-examination this witness testified that the other two automobiles remained standing still when the defendant drove out from behind them and went out onto the car tracks, and that after passing the others on their east side the defendant then drove his car toward the west and struck plaintiff.

Mrs. Rose Orso testified she was accompanying plaintiff at the time in question and that as she got out of the street car she saw the automobiles standing next to the curb and that

"When we went down from the car we made a step back and we wanted to wait for the car to pass to go across the street; * * * that the defendant come from behind the other cars * * * and he come fast and he hit Mrs. Pollinger down and he hit my left leg and he ran fast and he dragged her about 25 or 30 feet. * * * When I saw the machine coming up I can't say how far away it was, about 10 or 15 feet. He was the third machine back. When he came toward Mrs. Pollinger and me, I didn't hear any horn. He come fast can't say how fast, only 7: say he come fast. If he come not so fast, we got time to go past. He come so fast we couldn't get away. After he hit Mrs. Pollinger, I guess he dragged her 25 or 30 feet; I can't say, maybe it was a little further. She was under the machine."

Theresa Rausch testified that she got off the car with Mrs. Schelp and her little daughter; that she waited until the car passed and then started to cross to the east side of the street; that—

"We were not in the first car track yet and the other machine came and pulled out from the back and tried to curve from the side and ran into us and knocked Mrs. Pollinger down and dragged her 30 or 40 feet to the crossing.

"Q. Did you see this machine start from behind the other machines? A. Lies, sir.

"Q. At what point did you see it? A. I could see him when he pulled out, and he came so fast and we were all excited and didn't know what to do.

"Q. Could you tell about how fast he was coming? A. I don't know; we had no time to get away from him. * * * When saw him as he came around the other machines, there was not anything between him and me to keep him from seeing the ladies in the street. The street car had already passed. He passed to the left or east of the other machines. After he got in position to pass them there was nothing between him and me to keep him from seeing us."

The defendant on the witness stand in his own behalf, testified he was a baker by trade, 33 years of age and the owner of the Ford car; that he stopped his car about 30 feet behind the street car; that two automobiles were on the right-hand side behind the street car, one next to the other, and "we stopped in the car track"; that as the street car started—

"We started and I blew the horn and started up and we drove slow, about 3 miles an hour. When we got past that car or alongside the car all at once I saw a woman hanging on the fender or the front of my machine and then I stopped....