Ross v. Wells

• Decision Date: 06 November 1923
• Docket Number: No. 17935.,17935.
• Parties: ROSS v. WELLS.
• Court: Missouri Court of Appeals

255 S.W. 952

ROSS v. WELLS.

No. 17935.

St. Louis Court of Appeals, Missouri.

November 6, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by David Ross against Rolla Wells, receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

See, also, 253 S. W. 28.

Chas. W. Bates, T. E. Francis, and Alva. W. Hurt, all of St. Louis, for appellant. McMahon & Berthold and Oliver Blackinton, all of St. Louis, for respondent.

ALLEN, P. J.

This is an action to recover for personal injuries sustained by plaintiff and for damage to plaintiff's automobile, alleged to have been caused by the negligence of the defendant street railway company in the operation of one of its street cars in the city of St. Louis. The cause was tried below before the court and a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,500, and the defendant prosecutes the appeal.

The casualty occurred at the intersection of Kingshighway boulevard and St. Louis avenue, public streets in said city, on or about August 12, 1920. Plaintiff was driving his automobile southwardly on Kingshighway boulevard, which extends north and south, approaching the intersection of that street with St. Louis avenue, extending east and west. On St. Louis avenue, and crossing Kingshighway boulevard, the defendant maintained two street car tracks. Upon the south track it operated its east-bound cars, and upon the north track its west-bound cars. As plaintiff was in the act of crossing the north or west-bound track, his automobile was struck by a west-bound car, whereby he was injured and the automobile damaged.

It appears from the testimony that Kingshighway boulevard is 80 or 90 feet wide, having a grass plot or parkway between the two traveled portions of the street. Plaintiff's testimony is that when he passed the north building line on St. Louis avenue, about 25 feet north of the north curb of that street, at which time he was proceeding at about 3½ miles per hour, he looked to the east and saw a street car approaching from that direction, the car being then 300 or 400 feet distant from him. It appears that a street car was standing on the west side of Kingshighway, facing east, on defendant's eastbound track, receiving or discharging passengers; and plaintiff said that he watched this east-bound car and did not again look toward the east until the front wheels of his automobile were on the west-bound track, and that the west-bound car was then but 2 feet from the automobile. He testified that the distance from the north curb line of St. Louis avenue to the track on which he was struck was about 30 feet; that, after observing the west-bound car when he was at a point about 25 feet north of the curb line, he proceeded toward the tracks at a speed of about 3½ miles per hour until the collision occurred; and that, traveling at that rate he could have stopped his automobile in about 6 inches. He further testified that defendant's west-bound car was traveling at the rate of 35 or 40 miles per hour, and ran 157 feet beyond the point of collision.

Other testimony for plaintiff is to the effect that plaintiff's automobile was proceeding at about 10 miles per hour until it reached a point about 40 feet north of the west-bound track, when the speed was reduced to 2 or 3 miles per hour; that the west-bound street car was running at a high rate of speed—about 30 or 35 miles per hour when more than one-half a block east of Kingshighway—continued at that speed, without sounding any warning, until the collision occurred, and ran about 150 feet beyond the point of the collision. The evidence is that the west-bound car was drawing a trailer; and it is said that when these cars were brought to a stop the rear end of the trailer was about 50 feet west of the point of collision.

It is unnecessary to refer to the testimony touching the character and extent of plaintiff's personal injuries or that pertaining to the damage to the automobile.

The assignments of negligence in the petition are (1) a violation of a speed ordinance of the city of St. Louis, which is pleaded, limiting the rate of speed of street cars in that portion of the city to 15 miles per hour; (2) a violation of the so-called vigilant watch ordinance of the city of St. Louis, which is pleaded; (3) alleged negligence on the part of the motorman in failing to slacken the speed of the street car and in failing to sound a warning; (4) allegations seeking a recovery under the humanitarian or last chance doctrine.

The answer, so far as we need notice it, is a general denial, coupled with a plea of contributory negligence on the part of the plaintiff.

At the close of plaintiff's case the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which the court refused. Thereupon defendant offered no testimony, but stood upon its so-called demurrer. The cause was submitted to the jury upon instructions which permitted a recovery by plaintiff as for a violation by defendant of the speed ordinance mentioned above.

The first assignment of error is to the action of the trial court in refusing to peremptorily direct a verdict for defendant. It is said that plaintiff's own evidence convicts him of negligence as a matter of law, contributing to his own injury and loss, barring a right of recovery by him upon any of the assignments of primary negligence embraced within the petition, and that no case was made under the last chance...