Riggle v. Wells
| Decision Date | 06 July 1926 |
| Docket Number | No. 19440.,19440. |
| Parties | RIGGLE v. WELLS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; George E. Mix, Judge.
"Not to be officially published."
Action by Mary Agnes Riggle, a minor, by Mary Louise Riggle, her next friend, against Rolla Wells, Receiver of the United Railways Company of St. Louis, and others. From a judgment against named defendant, he appeals. Affirmed.
Charles W. Bates, T. E. Francis, F. Evans, and B. G. Carpenter, all of St. Louis, for appellant.
Mark D. Eagleton, of St. Louis, for respondent.
BECKER, S.
Plaintiff, a minor, in an action for personal injuries, had judgment against defendant, Rolla Wells, receiver of United Railways Company of St. Louis, Mo., for $4,500. In due course the railway company's receiver appealed.
Though plaintiff alleges five assignments of negligence in her petition, the court, at the conclusion of the case, sustained separate withdrawal instructions as to two of them, and submitted plaintiff's case to the jury on the remaining three assignments of negligence, namely, failure to ring a gong or give other warning of the approach of the car, violation of the Vigilant Watch Ordinance, and the humanitarian doctrine.
As to the answer, we note that it was but a general denial.
Plaintiff's action was against the United Railways Company, William H. Bardelmeyer, and Mildred Bardelmeyer. At the close of her case plaintiff dismissed as to the defendant William H. Bardelmeyer. A verdict resulted in favor of the defendant Mildred Bardelmeyer and against the United Railways Company.
Since one of the assignments of error of the appealing defendant is that its instruction offered at the close of the case in the nature of a demurrer should have been sustained, we will set forth such facts upon the entire record which, viewed in the light most favorable to plaintiff, and allowing plaintiff the reasonable inferences to be drawn therefrom, cause us to hold that the court properly ruled the demurrer.
In the month of October, 1922, plaintiff, a girl of 17 years of age, was injured while riding as a passenger in a Ford sedan driven by defendant Mildred Bardelmeyer south on Grand avenue in the city of St. Louis, when said automobile, as it was crossing the tracks of the United Railways Company at the intersection of Pestalozzi street with Grand avenue, was struck by a southbound street car. Grand avenue runs north and south, and in the center of said street there are double tracks of the defendant company, the west tracks being used for the southbound cars. Tower Grove park lies to the west of Grand avenue, while Pestalozzi street runs eastwardly from Grand avenue, starting at a point, however, approximately 160 feet north of the entrance to Tower Grove park. The collision occurred in the morning, during the broad daylight, as Mrs. Bardelmeyer was taking the plaintiff and her own daughter, 5 years old, to St. Elizabeth's Academy on Pestalozzi street. Mrs. Bardelmeyer was driving the car, and came to a complete stop at the entrance to Tower Grove park and Grand avenue. At the time the automobile started up, turning north into the west side of Grand avenue, after having made the boulevard stop, a south-bound street car was then more than a block away. The automobile then continued south on Grand avenue until it had reached a point opposite the north curb of Pestalozzi street, when, according to Mrs. Bardelmeyer, as she started to turn her car to the east or to the left to cross the defendant's south-bound car tracks and enter into Pestalozzi street, she looked a second time, and saw defendant's car at a point which admittedly was about 160 feet away from the automobile, and, according to plaintiff's testimony and that of Mrs. Bardelmeyer, no gong was rung from that time on whilst the street car continued south until it struck the left rear wheel of the automobile, causing plaintiff her injury. At the time of the collision the automobile was headed due east, and all but the left rear wheel had cleared the street car tracks.
Defendant's testimony discloses that the street car was running at a rate of 15 miles per hour, and, according to a witness adduced on behalf of plaintiff, who testified as an expert, a street car of the type in question going at 15 miles per hour could have been stopped in a distance of 35 feet. It further appears from testimony of defendant's witnesses that the car was in fact stopped within 33 feet after the brakes were applied.
The defendant contends that, though the evidence is conflicting as to whether or not any warning gong was sounded, yet, since it is admitted that both the plaintiff and Mrs. Bardelmeyer saw the street car on two separate occasions before the collision, they had ample knowledge of its approach at all times, and that a warning would have been a superfluous and futile thing, and therefore plaintiff was not entitled to go to the jury upon her assignment of negligence charging the defendant with failure to ring the gong or give warning of the approach of its street car, since in this situation the failure to ring the bell or give other warning of its approach was not the proximate cause of the collision, and could not be made a predicate for recovery. In support of this contention plaintiff relies upon Peterson v. Ry. Co., 270 Mo. 67, loc. cit. 75, 192 S. W. 938; Wood v. Fells (Mo. Sup.) 270 S. W. 332, 334, and cases therein cited. A careful consideration of the facts and circumstances in the instant case brings us to the conclusion that the point is without merit.
In this case plaintiff, as well as Mrs. Bardelmeyer, driver of the automobile, at the juncture when Mrs. Bardelmeyer started turning the automobile east to drive across defendant's tracks, saw the car then at a point (in fact 160 feet away) at which they believed would afford them ample time to cross the tracks in safety, and neither of them thereafter saw or heard anything of the street car until it crashed into the left rear wheel of the automobile. Under these circumstances, can it be said that the ringing of the bell or the giving of some warning of the near approach of the car would not have served some purpose? Rather, we think,...
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