Robinson v. Mayer

• Decision Date: 02 June 1936
• Docket Number: No. 23650.,23650.
• Parties: ROBINSON v. MAYER.
• Court: Missouri Court of Appeals

94 S.W.2d 1067

ROBINSON v. MAYER.

No. 23650.

St. Louis Court of Appeals. Missouri.

June 2, 1936.

Rehearing Denied June 16, 1936.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by William G. Robinson against Frank A. Mayer. From an adverse judgment, the defendant appeals.

Affirmed.

Roessel & Minton, of St. Louis, for appellant.

Felix Cornitius and Banister, Leonard, Sibley & Susman, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover damages for personal injuries sustained by plaintiff when struck by defendant's automobile at the intersection of Magnolia avenue and Kingshighway, in the city of St. Louis, on December 31, 1931, about 6:30 o'clock in the morning.

The trial, with a jury, was had on September 25, 1934, and resulted in a verdict in favor of plaintiff for $7,900. Upon the hearing of defendant's motion for a new trial, the court ordered a remittitur of $2,900. Such remittitur was entered by plaintiff, the motion for a new trial was overruled, and judgment for $5,000 was accordingly given. Defendant appeals.

Error is assigned by defendant here for the refusal of his instruction in the nature of a demurrer to the evidence. The assignment is put on the grounds: (1) That there is no evidence to show any negligence on the part of defendant directly contributing to plaintiff's injury; and (2) that the evidence shows plaintiff was guilty of contributory negligence as a matter of law.

Kingshighway runs north and south. Magnolia avenue runs east and west, and intersects Kingshighway on the east. There are two street car tracks in the middle of Kingshighway. The east track is used by northbound street cars, and the west track by southbound street cars. Kingshighway is sixty feet wide. Magnolia avenue is forty feet wide to the east of its intersection with Kingshighway, but gradually widens as it approaches Kingshighway, so that at its intersection with Kingshighway it is much wider than forty feet. There is a safety zone on the south side of the intersection just east of the northbound street car track.

Plaintiff at the time he was struck was walking across Kingshighway from west to east on the south side of the intersection. He was going to the safety zone for the purpose of boarding a northbound street car. He was struck when he arrived at a point between the rails of the northbound street car track, nearer the east than the west rail of the track, near the north end of the safety zone.

Plaintiff testified that it was raining very hard when he left his home, but it was not raining hard when he arrived at Kingshighway; that he had on a grey overcoat that came down to his knees; that it was quite light from the street lights on the corner there at the time; that when he arrived at Kingshighway he waited for automobiles coming south so that he would have a clear way to go across, with the exception of a bus which was coming so slow that he crossed ahead of it; that he was carrying an umbrella over him; that he got apparently within a step or two of the safety zone; that he remembered distinctly up to that point, but did not know what happened to him; that he was looking south down Kingshighway the minute he crossed the middle of the street; that before that time he was looking north; that the next thing he remembered was that he was on a stretcher in the City Hospital; that he did not look up Magnolia avenue, but was watching the intersection there; that he looked at that intersection to see if there were any cars coming out of Magnolia avenue; that he saw no automobiles coming out of Magnolia avenue, but saw several crossing the intersection going north on the east side of Kingshighway; that there was a boulevard stop on Magnolia at the intersection there, and that there was nothing coming through when he looked there; that the approaching bus was all lighted up; that the two headlights on the bus projected light southwardly on him as he walked in front of the bus; that he heard no signal or horn of any automobile; that the bus was in the southbound street car track; that he was watching the bus as he crossed in front of it.

Plaintiff read in evidence defendant's deposition, as follows: "I arrived at Kingshighway about six-thirty. It was raining and a dark morning. The street lights were lit. The lights on my machine were lit. My car was in good working condition. The lights were in good condition. I was making a left turn to the south on Kingshighway. I came in contact with and ran against Mr. Robinson as I was making that left turn. After the accident he was somewhere near the northbound car track. He was between the rails of the northbound car track to the best of my memory when I first saw him. He was walking from the west eastwardly. There was a safety zone on Kingshighway east of the northbound street car track. He was slightly north of this safety zone when I knocked him down. The left front part of my automobile struck him. I was running about ten miles an hour. My automobile was moving southwestwardly when I first saw plaintiff. I first saw him just as I was in the turn. I traveled only a few feet after I saw him. I struck him as I was making the turn. When I first saw him he was walking from the west side in the car track. He was between the rails of the northbound track."

Henry C. Weiblen testified, for plaintiff, that he was driving north on Kingshighway and stopped at the stop sign at the south intersection of Magnolia and Kingshighway; that he saw defendant's car making a left turn out of Magnolia into Kingshighway; that as he looked he saw a man kind of falling in a sitting position on the front wheel of the automobile; that it seemed like he was sitting in that position when they picked him up; that he was in...