Roper v. Greenspon

• Decision Date: 30 December 1916
• Docket Number: No. 14871.,14871.
• Parties: ROPER v. GREENSPON et al.
• Court: Missouri Court of Appeals

192 S.W. 149

ROPER v. GREENSPON et al.

No. 14871.

St. Louis Court of Appeals. Missouri.

December 30, 1916.

On Motion for Rehearing, February 27, 1917.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action by Bruce Roper against Rose Greenspon and others. During the pendency of the cause in the circuit court the death of the named defendant was suggested, and the cause revived against the administrator of her estate. Judgment for the plaintiff, and defendants appeal. Reversed, and certified to Supreme Court.

Jones, Hocker, Sullivan & Angert and Vincent L. Boisaubin, all of St. Louis, for appellants. Sidney Thorne Able, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while driving an automobile upon a street in the city of St. Louis, occasioned by coming into collision with certain steel beams upon a wagon of defendants, and alleged to have resulted from defendants' negligence. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff, and the case is here on defendants' appeal.

The Petition.

The petition alleges that on or about the 14th day of July, 1912, at about 9:45 p. m., plaintiff, a chauffeur in the employ of and driving a taxicab for the St. Louis Taxicab Company —

"drove in an easterly direction along the right or south side of Lawton avenue to Channing avenue, both being public highways in a residence section of the city of St. Louis, Mo. That the defendants were at the aforesaid time the owners of a wagon, loaded with heavy steel I-beams, which extended 8 or 10 feet behind the rear of the wagon, and two horses in the possession of a driver, the servant and employé of the defendants, who was then and there in charge of same for defendants, which wagon and team was at the time aforesaid facing north on Channing avenue at the intersection of Lawton avenue, standing across and blocking Lawton avenue. That there was no light or lantern displayed on the outside of said wagon; that at said time there was in force a certain ordinance of the city of St. Louis, Mo., providing that `On every hackney carriage, cab or cabriolet, when driven upon the streets between the hours of sunset and sunrise, shall have fixed on some conspicuous part of the outer side thereof, two lighted lamps, with plain glass front and sides, on which shall be painted in legible figures, at least one inch long, the registry number thereof. Every automobile, when upon any public street, shall carry between the hours of sunset and sunrise at least two lighted lamps showing white lights visible at least two hundred feet in the direction toward which the automobile is proceeding, and shall also exhibit at least one red light visible in the reverse direction. All other vehicles, while in use upon the streets between the hours of sunset and sunrise, shall display one or more lights or lanterns on the outside of such vehicles, visible from front and rear' (italics ours) — being section 1349. That on account of the negligence of defendants, their servant and employé in failing to observe the requirements of said ordinance and in failing to display a light or lantern on outside of said wagon at aforesaid time, being between the hours of sunset and sunrise, plaintiff driving taxicab east on right or south side of Lawton avenue, as aforesaid, exercising due care for his own safety, was unable to see said unlighted wagon loaded with heavy steel I-beams, drove into and against the ends of the heavy steel I-beams, which extended 8 or 10 feet from the rear of said wagon," injuring himself, etc.

The petition further alleges:

"That the defendants, their servant and employé, carelessly and negligently allowed the said wagon loaded with heavy I-beams, which extended eight or ten feet behind the wagon, to come to a standstill on Channing avenue across Lawton avenue, a much used public highway, on a dark night at aforesaid time, carelessly and negligently permitting it to remain there for 30 minutes or more while driver, a servant and employé of defendants, of said wagon owned and about the business of defendants at said time, unhitched the team from the wagon, argued the advisability of trading teams with another driver, a servant and employé of defendants driving another wagon for said defendants at said time near said place, and rehitched same team to said wagon, without giving any signal or warning to approaching vehicle driven by plaintiff, and without displaying a light on the heavy steel I-beams which extended 8 or 10 feet from the rear of the wagon and in the path of east-bound traffic on Lawton avenue; each and all of which acts and omissions on the part of defendants, their servants and employés, proximately caused and directly contributed to the aforesaid accident and injuries resulting therefrom to plaintiff."

It is further alleged that defendants' driver was not a fit and proper person to be intrusted with the team and wagon, but this allegation is now unimportant. Certain allegations are made relative to plaintiff's injuries, and his resulting damage and loss, which need not be particularly noticed. Judgment is prayed in the sum of $10,000.

The Answer.

The answer contains first a general denial and a general plea of contributory negligence. It is then averred that:

If plaintiff sustained any injuries "they were directly and proximately caused by his own carelessness and negligence, in that he was an incompetent and inexperienced driver of an automobile, in that he carelessly and negligently drove an automobile into and against the wagon and contents, without paying attention to where he was going, and in that he failed to drive the automobile in a careful and prudent manner and at a rate of speed so as not to endanger himself and the property of defendants, and in that he failed to use the proper degree of care to prevent injury, and in that he failed to display and maintain in the front of the automobile sufficient and proper lights as required by law, and in that he was at the time of the alleged accident approaching said wagon and contents at a negligent, careless, and dangerous rate of speed, and in that at the time of the alleged accident he was approaching said wagon and contents at a rate of speed dangerous to himself and to the property of others, and at a rate of speed unreasonable under the conditions, and at a rate of speed greatly in excess of and in violation of an ordinance of the city of St. Louis, Mo., at said time in force and known as section 1551, which said ordinance provides as follows: `No automobile, motor vehicle, locomobile or horseless vehicle propelled by the use of electricity, gasoline or steam, by whatever name such vehicle may be known, whether used for purposes of pleasure or business, shall be moved or propelled along, over or upon any public street, avenue, boulevard or other public place, at a greater rate of speed than is reasonable, having regard to the traffic and use of such street, avenue, boulevard or public place, or so as to endanger the life or limb of any person, or the safety of any property, and shall not in any event, while upon any such street, avenue, boulevard or public place, be moved or propelled at a greater rate of speed than eight miles per hour in the business portions of the city, and not greater than ten miles per hour in the other portions thereof; and when turning a corner of intersecting streets, avenues, boulevards, or public places, or when traversing a curve or turn in a street, avenue, boulevard or public place where the view is obstructed, the rate of speed shall not be greater than six miles per hour. The term and words "business portions of the city" as used in this ordinance shall be construed to mean the territory of the city contiguous to a street, avenue, boulevard or public place, which is at a particular point principally built up with structures devoted to business.'"

And it is averred that by reason of plaintiff's failure to observe the ordinance pleaded by defendant, and his negligence in other particulars, as averred, "he was guilty of negligence directly contributing to cause whatever injuries, if any, he may have received."

The Reply.

The reply denies that the injuries received by plaintiff "were caused by his own negligence directly contributing thereto," and specifically denies that:

"The injuries sustained by him were directly and proximately caused by his own carelessness and negligence, in that he was an incompetent and inexperienced driver of an automobile, in that he carelessly and negligently drove an automobile into and against the wagon and contents, without paying attention to where he was going, and in that he failed to drive the automobile in a careful and prudent manner, and at a rate of speed so as not to endanger himself and the property of defendants, and in that he failed to use the proper degree of care to prevent injury, and in that he failed to display and maintain in the front of the automobile sufficient and proper lights as required by law, and in that he was at the time of the alleged accident approaching said wagon and contents at a negligent, careless, and dangerous rate of speed, and in that at the time of the alleged accident he was approaching said wagon and contents at a rate of speed dangerous to himself and to the property of others and at a rate of speed unreasonable under the conditions, and at a rate of speed greatly in excess of and in violation of an ordinance of the city of St. Louis, Mo., at said time in force and known as section 1551."

During the pendency of the cause in the circuit court the death of Rose Greenspon, one of the defendants, was suggested, and the cause was revived against the administrator of her estate. The administrator thereupon filed an answer identical with that which had been theretofore filed by defendants, and to this answer plaintiff...