Russell v. Bauer-Berger Grocery Co.

• Decision Date: 07 December 1926
• Docket Number: No. 19388.,19388.
• Citation: 288 S.W. 985
• Parties: RUSSELL v. BAUER-BERGER GROCERY CO.
• Court: Missouri Court of Appeals

288 S.W. 985

RUSSELL v. BAUER-BERGER GROCERY CO.

No. 19388.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

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

"Not to be officially published."

Action by Oliver Russell against the Bauer-Berger Grocery Company. Judgment for plaintiff, and defendant appeals. Cause revived in name of Martha Russell, administratrix, after death of plaintiff. Affirmed.

Geers & Geers, of St. Louis, for appellant.

Kane, Blackinton & Reid, of St. Louis, for respondent.

SUTTON, C.

This action was brought by the plaintiff's intestate, Oliver Russell, to recover damages for personal injuries suffered by him in an accident, which occurred on Broadway, near its intersection with East Grand avenue, in the city of St. Louis, on February 22, 1924, at or about the hour of 7:45 in the evening. The trial, with a jury, resulted in a verdict and judgment in favor of the intestate for $3,000, and the defendant appeals. The death of the intestate has been suggested here, and the cause revived in the name of the administratrix of his estate. We will hereafter refer to the intestate as the plaintiff.

Broadway runs north and south, and East Grand avenue runs east and west. There are double street car tracks on Broadway. North-bound street cars are operated on the east track, and south-bound cars on the west track.

The plaintiff claims that he was standing near the southwest corner of Broadway and East Grand avenue between the west rail of the west street car track and the west curb of Broadway, waiting to board a street car which was approaching from the north, when he was run upon and injured by the defendant's automobile approaching from the south.

The petition alleges, inter alias that the plaintiff, while he was a pedestrian lawfully in and upon Broadway at or near its intersection with East Grand avenue, and while lie was standing at the west side of Broadway between the west curb and the west rail of the south-bound street car track, south of East Grand avenue, at a point where passengers board the south-bound Broadway cars, it being the regular stopping place of the south-bound Broadway street cars, and was waiting to board an approaching southbound Broadway street car, was, by reason of the negligence of the defendant, violently struck, knocked down, and run over by an automobile owned and operated by the defendant, whereby plaintiff suffered serious and permanent injuries; that said injuries were directly caused by the negligence of the defendant, in this, to wit, that the defendant negligently drove, ran, and operated its said automobile suddenly from the right or east side of Broadway, an open public street in the city of St. Louis, directly across and to the left of a street car to the west side of Broadway, without any signal or warning, and without any headlights, against and upon plaintiff, who was waiting on Broadway at a regular stopping place for a south-bound Broadway street car between the west rail of the south-bound track and the west curb of Broadway, and stopping said automobile at the southwest corner of East Grand and Broadway, with said automobile facing the north, with its left wheels to the west curb of Broadway; that there was at the time in force and effect in the city of St. Louis an ordinance providing that drivers of motor vehicles of all kinds shall, on approaching a crossing, or in rounding a curve or corner in a public street, sound their signals in such a way as to give a warning to other vehicles and to pedestrians of their approach, and providing that no motor vehicle shall be moved or propelled along, over or upon any public street at a greater rate of speed than is reasonable, or so as to endanger the life or limb of any person, or at a greater rate of speed than 10 miles per hour; and that defendant, in violation of said ordinance, negligently failed and omitted to sound any warning, or give any signal of approach of said automobile, and negligently operated said automobile at a speed greater than was reasonable under the conditions and circumstances then existing, and at a rate of speed in excess of 10 miles per hour.

The answer is a general denial, coupled with a plea of contributory negligence.

The evidence for the plaintiff tends to show that on the evening of his injury, he, with Sam Woods, went to the southwest corner of Broadway and East Grand avenue to catch a street car; that they walked west on the north side of East Grand to Broadway, crossed East Grand avenue to the southeast corner of East Grand and Broadway, and then crossed Broadway to the southwest corner, and there waited for a south-bound Broadway street car; that, while waiting for the street car, plaintiff and Woods were standing in the street about 9 feet from the curb, about 10 feet from the corner, and about 6 feet from the west rail of the south-bound street car track, where south-bound street cars regularly stopped to receive and discharge passengers; that a north-bound Broadway street car had stopped, and was standing on the east side of Broadway; that the defendant's automobile truck, operated by defendant's driver, approached East Grand avenue from the south, running east of the center of Broadway, at a speed of 15 miles per hour, and without any headlights, suddenly turned across the tracks to the west side of Broadway, and, proceeding north on the west side of Broadway, without any reduction in speed, and without any warning signal of its approach, struck both Woods and the plaintiff; that both were knocked down by the impact; that plaintiff grabbed the radiator of the truck, and, holding on to the same, was dragged about 10 feet before the truck stopped; that he was under the truck when it stopped, but that the wheels of the truck did not run over him; that Woods assisted him in getting out from under the truck; that, before plaintiff was struck by the truck, he was looking north at an approaching south-bound street car, which was about half a block away; that some person standing on the sidewalk, seeing the truck approaching, and about to strike Woods and plaintiff, shouted "Look out"; that thereupon Woods jumped, but was unable to escape being struck; that the plaintiff, hearing the shout, or the noise of the approaching truck, or both, turned around, and was immediately struck.

The evidence for the defendant tends to show that defendant's truck approached East Grand from the south, running on the east side of Broadway at a speed of 8 to 10 miles per hour; that there was at the time no, street car in sight either on the north-bound or the south-bound track; that the truck proceeded north on the east side of Broadway, and, keeping to the right of the center of the intersection, made a left turn to go west on East Grand; that the truck struck the plaintiff when it had reached a point within the intersection west of the southbound street car track and east of the crosswalk over East Grand; that the headlights on the truck were burning; and that the horn was sounded as the truck approached the intersection. The driver of the truck testified that he did not see plaintiff or Woods either before or at the time of the collision; that he heard the front part of the truck strike something, and immediately stopped the truck; that the truck stopped in a...