Rose v. Wells

• Decision Date: 05 November 1924
• Docket Number: No. 18587.,18587.
• Citation: 266 S.W. 1015
• Parties: ROSE v. WELLS.
• Court: Missouri Court of Appeals

266 S.W. 1015

ROSE v. WELLS.

No. 18587.

St. Louis Court of Appeals. Missouri.

November 5, 1924.

Rehearing Denied December 31, 1924.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Louis Rose against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.

Charles W. Bates, T. E. Francis, and Edward P. Walsh, all of St. Louis, for appellant.

Bass & Bass and Julius A. Razovsky, all of St. Louis, for respondent.

BRUDRE, C.

Plaintiff, who is respondent here, sues for damages for personal injuries received by him in a collision on a public crossing, between a street car operated by defendant's servants and an automobile driven by plaintiffs chauffeur. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, and defendant has appealed.

The negligence charged in the petition, and upon which the case was submitted to the jury, is (1) running said street car at a speed in excess of 10 miles an hour in violation of an ordinance of the city of St. Louis; and (2) failing to keep a vigilant watch ahead for vehicles on or moving towards the track on which the car was running, . and failing on the first appearance of danger to such vehicle to stop said street car in the shortest time and space possible, or before said collision, in violation of an ordinance of the city of St. Louis commonly called the Vigilant Watch Ordinance.

The answer contains a general denial and a further plea that the collision was due to the negligence of plaintiff's servant, the driver of the automobile, in failing to watch out and observe the approaching street car and avoid collision therewith.

The errors assigned here relate to the refusal of the court to direct a verdict for the defendant and to the action of the court in giving certain instructions for plaintiff.

The facts in the case, so far as they are pertinent to the questions raised upon this appeal, are these: The collision occurred on the 4th day of May, 1922, at about 6:30 in the evening, at the intersection of Twenty-Second and Wash streets in the city of St. Louis. Twenty-Second street runs north and south, and crosses Wash street at right angles. The width of the roadway on Wash street is 50 feet. The defendant maintains a double track street car line in the center of Wash street. The north track is used for west-bound cars and the south track is used for east-bound cars.

A fire engine house is located at the northeast corner of Twenty-Second and Wash streets. The west-bound street cars, running on Wash street, were stopped at the northwest corner of Twenty-Second and Wash streets to receive or discharge passengers, because it was not permissible to stop them in front of said fire engine house.

The plaintiff was riding in his automobile, which was driven by his chauffeur, his wife Gladys Rose, north on Twenty-Second street, and while crossing Wash street, and when on defendant's said west-bound track, a westbound street car collided with the automobile, striking it on the right side at about the center, resulting in injury to the plaintiff.

Regarding the manner in which the accident occurred, Gladys Rose, plaintiff's chauffeur, testified that she was driving plaintiff's automobile north on the east side of Twenty-Second street; that when she got even with the building line on the south side of Wash street she slowed down the machine to 8 or 10 miles per hour and looked east and saw a west-bound street car halfway down the block, approaching on Wash street at a speed between 15 and 20 miles an hour; that she then continued north into Wash street and across the east-bound track, across the space between the tracks, and onto the north or west-bound track, when the machine was struck by said west-bound street car and pushed across Twenty-Second street; and that the street car did not stop or slow down at the northeast corner of Twenty-Second and Wash streets.

She further testified that she saw no eastbound street car on Wash street at the time of the accident; that while crossing Wash street she was going in low speed and three times as fast as an ordinary man ordinarily walks; that at the speed the automobile was moving she could have stopped it in 8 or 10 feet; and that after crossing the building line on the south side of Wash street she did not again look towards the approaching street car until the automobile was in the middle of the west-bound track and was struck by said car.

Plaintiff, Louis Rose, who at the time of the accident was suffering from locomotor ataxia, testified that he owned the automobile in question at the time of the collision, and that his wife acted as his chauffeur at said time. He further testified that his wife slowed down the automobile at the intersection of Twenty-Second and Wash streets; that he did not see the street car in question; and that his first knowledge of the collision came when he recovered consciousness and had been removed from the automobile over to the sidewalk.

Plaintiff introduced in evidence the speed ordinance of the city of St. Louis, prohibiting operation of street cars at a speed greater than 10 miles an hour in the locality where the accident occurred; also...