Rabushka v. Wells

• Citation: 22 S.W.2d 870
• Decision Date: 07 January 1930
• Docket Number: No. 20847.,20847.
• Parties: RABUSHKA v. WELLS.
• Court: Court of Appeal of Missouri (US)

22 S.W.2d 870

RABUSHKA v. WELLS.

No. 20847.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Clara Rabushka against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Taylor, Mayer & Shifrin, all of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment against the defendant company in her action for damages for personal injuries alleged to have been sustained by her when struck by the rear end of one of defendant's street cars on its Hodiamont line as it rounded the curve at the southeast corner of Fourteenth and Wash streets in the city of St. Louis, Mo. Defendant appeals.

Plaintiff's petition contains two assignments of negligence; that of failure to warn, and failure to comply with an ordinance requiring street cars to stop on signal to pick up prospective passengers.

Defendant's answer was a general denial coupled with a plea of contributory negligence, in that plaintiff retained a position in close and dangerous proximity to a street car while said street car was rounding a curve.

Appellant assigns as error the overruling of its demurrer offered at the close of the case, contending that plaintiff was guilty of contributory negligence as a matter of law.

Upon reading the record we have come to the conclusion that the demurrer was well ruled.

The testimony, taken in the light most favorable to plaintiff, and allowing her the reasonable inferences to be drawn therefrom, tended to show that the defendant maintained a double line of street car tracks on Fourteenth street, a north and south street, and at the intersection of said street with Wash street the street cars turn and proceed westwardly on Wash street, and that the usual stopping place for the cars, north-bound on Fourteenth street, is on the southeast corner of Fourteenth and Wash streets; that the rear end of the cars of defendant's Hodiamont line which it operates over these tracks, extends beyond the rear trucks, so that the rear end of cars, which proceed north on Fourteenth street and turn westwardly on Wash street, swing out over and beyond the tracks in making such turn.

According to plaintiff's testimony, she and a Mrs. Benson, at the time in question, had just returned from a market in the neighborhood, and were carrying several baskets of groceries, and each wished to take a westbound Hodiamont car to her home. Plaintiff had often boarded the street cars at this intersection and was familiar with the manner in which these cars went north and turned westwardly on Wash street, and she also knew that it was customary to get on at the front end of the street car and at a point just before the car made its turn. Plaintiff and Mrs. Benson left the east sidewalk on Fourteenth street at the proper place to board the front entrance of the street car, and walked about two steps out into the street from the curb. Plaintiff first observed the street car in question when it was about a block away. As it approached, plaintiff made a motion with her hand to indicate to the motorman that she wished to become a passenger, and according to plaintiff and one of her witnesses the motorman thereupon slowed up, and plaintiff thought he was going to bring his car to a stop; however the motorman did not bring the car to a stop, but proceeded past plaintiff, and the rear end of the car swung out, striking plaintiff and Mrs. Benson, causing plaintiff injuries.

On cross-examination the plaintiff was asked:

"Q. Did you stand in that same position the entire time? A. Sure I was."

"Q. And the front of the car passed you and went around the curve and you were hit by the overhang of the street car, that is, the rear end of it as it rounded the curve? A. The front passed by and as it turned it hit me. I was afraid to step forward; I didn't know whether to go forward or backward, so I stood in the same place."

There is testimony that it was a clear day and there was no traffic on the street at or near the corner at which plaintiff was seeking to board the car.

Plaintiff's version of the happening is corroborated by Mrs. Benson, who was with her at the time.

Joseph Becker testified that he was an eyewitness; that he saw plaintiff and Mrs. Benson at the corner, and that he saw one of them raise her hand as the car approached; that the motorman slowed down a little at the corner of Fourteenth and Wash streets, but that he did not stop, and that no signal of any kind...