Pudiwitr v. Soloman
| Decision Date | 15 November 1949 |
| Docket Number | No. 27714.,27714. |
| Citation | 224 S.W.2d 562 |
| Parties | PUDIWITR v. SOLOMAN. |
| Court | Missouri Court of Appeals |
This is an action to recover for personal injuries and property damage sustained by plaintiff, George Pudiwitr, in an intersectional collision between the automobile which he was driving and an automobile owned and operated by defendant, Jack Soloman. Defendant filed a counterclaim for his own personal injuries and property damage.
At a trial upon the facts without a jury, the court assessed damages in the sum of $650 in favor of plaintiff upon his cause of action, and also found in favor of plaintiff, and against defendant, upon the latter's counterclaim. Judgment was entered in accordance with the findings of the court; and following an unavailing motion for judgment, or, in the alternative, for a new trial, defendant gave notice of appeal, and by subsequent steps has caused the case to be transferred to this court for our review.
Plaintiff counted in his petition upon three assignments of primary negligence coupled with an assignment of negligence under the humanitarian doctrine. The charges of primary negligence were excessive speed; failure to slacken the speed of defendant's automobile or to swerve it in such a manner as to avoid colliding with plaintiff's automobile; and defendant's entry into the intersection when the electric signal was against him. The charge under the humanitarian doctrine was based upon defendant's failure to have stopped, slackened the speed of, or swerved his automobile after he saw or should have seen plaintiff in a position of imminent peril.
Defendant's answer was a general denial of all of plaintiff's charges of negligence, coupled with the affirmative allegation that whatever injury and damage plaintiff had sustained had been due to his own contributing carelessness and negligence in operating his automobile at an excessive rate of speed; in entering the intersection when the electric signal was against him; in failing to keep a lookout ahead or laterally for other vehicles; in failing to have his automobile under such control that it could be readily stopped at the first appearance of danger; and in so turning, swerving, and driving his automobile as to cause it to collide with defendant's automobile, which had allegedly started across the intersection with the light in defendant's favor.
The counterclaim was predicated upon an unchallenged plea of general negligence.
The accident happened about 6:00 a. m. on September 12, 1947, at the intersection of Lindell and Union Boulevards, in the City of St. Louis. Lindell Boulevard runs east and west, while Union Boulevard runs north and south and terminates at its entrance into Forest Park on the south side of Lindell Boulevard. Both streets are wide thoroughfares much used for traffic, and what would otherwise be the corners of the intersection have been rounded out and extended so that a motorist going in either direction on either street actually enters the intersecting area before he is even with the curb line of the street which he is about to cross. There is a standard electric signal at the intersection with alternate red and green lights to control the movement of traffic on both streets.
While it is agreed that the collision happened at the intersection of Lindell and Union Boulevards, the case presents the most unusual spectacle of the parties being in dispute as to which of them was on Lindell and which on Union, and also as to the respective directions in which they were traveling. Plaintiff bases his cause of action upon the theory that he was westbound on Lindell Boulevard and defendant southbound on Union, while defendant insists that it was he who was on Lindell traveling eastbound, and that plaintiff was southbound on Union Boulevard.
Plaintiff was employed at the time of the accident by an industrial concern located at 1822 Cherry Street in Wellston, and was assigned to a shift that went off duty at 11:00 p. m. He was accustomed to eat his evening meal at a place referred to as Harris' Tavern, which is situated in the 6100 block of St. Louis Avenue, about four blocks from his place of employment. On the evening in question he had a tentative arrangement to meet one Dorothy Haynes at the tavern when he came off shift at his regular quitting time. Dorothy Haynes resided at 2411 North Vandeventer Avenue, and was a friend of the Harris family. She and plaintiff had previously discussed the prospect of a date, but this was the first occasion that they had actually gone out together.
When plaintiff called to keep his appointment, he not only met Dorothy Haynes, but also one Eddie Frame and two unidentified young women, all of whom made up a party. Plaintiff was twenty-five years of age, and Dorothy Haynes twenty-four. They remained at the tavern until closing time, and then drove in plaintiff's automobile to a tavern near Wellston on the St. Charles Rock Road. Plaintiff himself spoke of it as located on Easton Avenue. They were drinking beer at both places, as they did at all the other taverns which they subsequently visited. From the second tavern they drove back to a barbecue stand at Kingshighway and Delmar Boulevard, where they had something to eat. They then drove once again to St. Louis Avenue, where Frame and the two unidentified young women left the party, after which plaintiff and Dorothy Haynes "went riding around". Plaintiff thought they made an additional stop in South St. Louis, but was not at all certain about it. Although he had spent his entire life in St. Louis County, he professed to have but scant knowledge of the City of St. Louis, and testified that as far as he knew, "South St. Louis is East St. Louis, as a city". He then recalled driving over a bridge and making another stop at a tavern, which he imagined was in East St. Louis. Dorothy Haynes positively identified the place as in East St. Louis. Leaving this tavern, they returned across the river to St. Louis, and it was about 6:00 o'clock in the morning, or shortly before, when they had the collision with defendant's car.
Plaintiff's hazy recollection of so many of the things that transpired would strongly indicate that he was under the influence of alcohol at the time of the accident, although both he and Dorothy Haynes testified to the contrary.
According to plaintiff's personal testimony, he was driving westwardly on Lindell Boulevard approaching its intersection with Union Boulevard. He did not recall where he had entered upon Lindell Boulevard; and he explained that his immediate destination was his place of employment to which he was going to leave an order for some work that had to be done by 7:00 o'clock. Otherwise he might have been expected to have turned north on Vandeventer Avenue as the most direct course to the address where Dorothy Haynes resided.
When he arrived at a point approximately 200 feet from Union Boulevard, he noticed that the red light was against him, and he slowed down to about 15 miles an hour while waiting for the light to change. The green light came on when he was 35 to 50 feet from Union Boulevard; and as the signal changed in his favor, he shifted to second gear and started across the intersection. His car was "just a little over the center" when the collision occurred, the front end of defendant's car striking the right side of his car just back of the door, and turning his car so that it was facing northwest after it came to a stop on the south side of Lindell Boulevard 10 to 15 feet beyond the point of impact. Asked by the court how far away defendant's car was when he first saw it, he replied that "it was a matter of a few feet", and that he "was not watching the other car". It was just getting light at the time of the accident, and the headlights of both cars were on. The necessity for lights is accounted for by the fact that daylight saving was in effect, so that the actual time of day was one hour earlier than that which the evidence disclosed.
Dorothy Haynes testified that plaintiff had turned left into Lindell Boulevard off of Vandeventer Avenue, and that he was from 25 to 30 feet east of Union Boulevard when the green light came on in his favor. All she could say about plaintiff's speed at the time of the collision was that "he had just shifted into second, so he couldn't have been going fast". Plaintiff "was already started across Union a little ways" when she first saw defendant's automobile about 100 feet to the north on Union Boulevard. Whether plaintiff's car was then at the eastern edge of the intersecting area where the curved portion begins, or whether he was even with the curb line of Union Boulevard, she did not attempt to say. Asked about defendant's speed, she was "pretty sure he was going over thirty".
Defendant's evidence presented an entirely different picture of the whole situation.
Defendant resides at 1294 Amherst Place in the City of St. Louis, and operates a tavern at 2007 Market Street. He usually opens his tavern about 6:30 in the morning, and he was on his way to open up at the time the accident occurred.
According to defendant's testimony, he had left his home that morning and had driven a short block west to Hodiamont Avenue, which he followed south to Delmar Boulevard, and from there over Des Peres to Lindell, where he turned east, intending to follow Lindell to its connection with Olive Street, and then down town to his place of business. In other words, he was positive in his testimony that he was driving east on Lindell at the time of the accident, and not south on Union as plaintiff and Dorothy Haynes had testified.
Defendant testified that he was driving at a speed of some 28...
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