Potashnick v. Wells

• Decision Date: 18 June 1925
• Docket Number: No. 19028.,19028.
• Citation: 273 S.W. 777
• Parties: POTASHNICK v. WELLS.
• Court: Missouri Court of Appeals

273 S.W. 777

POTASHNICK v. WELLS.

No. 19028.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Philip Potashnick against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed, on condition of remittitur.

Charles W. Bates, T. E. Francis, and Ernest A. Green, all of St. Louis, for appellant.

John P. Leahy and Earl M. Pirkey, both of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment for $5,675.83 as damages on account of personal injuries alleged to have been received by plaintiff, and damages alleged to have been done to plaintiff's personal property, due to a collision between a horse and wagon driven by plaintiff and a street car operated northwardly by defendant at the intersection of Leffingwell avenue and Dayton street in the city of St. Louis, on January 31, 1920, at 6:30 o'clock a. m.

Plaintiff's petition sets up five assignments of negligence. Defendant's answer was a general denial, coupled with a plea of contributory negligence; that plaintiff drove onto the said car tracks when, by the exercise of ordinary care, he could have seen and heard the approaching street car thereon; that plaintiff drove immediately in front of a moving street car; that plaintiff violated the city ordinance in failing to carry the proper light signals upon his wagon. The reply was conventional.

At the close of the case the defendant offered a demurrer, which was overruled, and the case was submitted to the jury as for the violation of the 10-mile speed ordinance and upon the humanitarian doctrine.

The overruling of defendant's demurrers to the evidence is here assigned as error. Appellant argues that the plaintiff's evidence is unbelievable, contrary to nature and physical facts, and that the trial court consequently should not have submitted the case to the jury upon evidence of such character. Appellant further urges that, under all the creditable evidence and the physical facts in the case, plaintiff was guilty of contributory negligence as a matter of law, and for that reason its demurrers to the evidence should have been sustained. After an examination of the record we have come to the conclusion that neither of these points is well taken.

Plaintiff testified that at about 6:30 o'clock in the morning on the day in question he drove his one-horse huckster's wagon east on Dayton street to Leffingwell avenue at the rate of about 3 miles per hour. Dayton street runs east and west, and Leffingwell avenue runs north and south. According to plaintiff, when he got to Leffingwell avenue and his horse was about 4 feet from the west rail of the south-bound car tracks, he slowed up and looked north and south; that because of the weight of his wagon and the load therein, and because the street was rough, from that point on he drove at the rate of about one mile per hour; that when his horse was at the second rail of the southbound track he again looked south, and neither saw nor heard any street car; that he thereupon proceeded, and when his wagon was on the north-bound car tracks it was struck near the rear on the right-hand side by a north-bound car of the defendant company, upsetting the wagon, injuring him and his horse, and doing damage to the wagon and contents.

It further appears from plaintiff's testimony that, at the intersection of the streets named, one could look to the south a distance of approximately 300 feet to the next intersecting street, where defendant's cars turned into Leffingwell avenue from the east; that when plaintiff's horse's head was about over the west rail of the north-bound street car track, at a time when plaintiff testified he looked to the south and saw no car in sight, it was necessary for his horse to travel about 21 feet to get his horse and wagon entirely over the said street car tracks and be "in the clear"; that on account of the roughness, of the street and the heavy load his horse proceeded at the rate of one mile per hour; that he did not see, nor did lie hear, the car which collided with his wagon, up to the time of the collision, and that he did not hear the sound of any gong or bell.

Peter B. Marcus, a witness for plaintiff, testified that he was a passenger on the street car in question, and was riding in the second or third seat from the front thereof; that when he first saw plaintiff's wagon it was right on the tracks; that the street car at that time was about 35 or 40 feet away and running at the rate of speed of about 25 miles per hour. Thomas Stack, another passenger on said street car, testified, corroborating Marcus as to the speed of the car at the time of the collision.

Abraham Lerner testified that he was standing on the corner of Dayton street and Leffingwell avenue and saw the collision, and that he saw the street car approaching at a speed of 22 or 23 miles per hour; that when he first saw the street car it was in the middle of the block, at a time when plaintiff's wagon was on the tracks. This witness also testified that the street car speed was not slackened until after the collision. Plaintiff adduced expert testimony tending to prove that the street car, under the conditions, obtaining at the time in question, running at the rate of 20...