Sackmann v. Wells

• Decision Date: 28 July 1931
• Docket Number: 29681
• Citation: 41 S.W.2d 153
• Parties: SACKMANN v. WELLS et al
• Court: Missouri Supreme Court

41 S.W.2d 153

SACKMANN v. WELLS et al

No. 29681

Supreme Court of Missouri, First Division

July 28, 1931

Taylor B. Wyrick, of St. Louis, and George Barnett, of Kansas City for appellant.

T. E Francis and Richard S. Bull, both of St. Louis, for respondents.

OPINION

RAGLAND, J.

Henry P. Kerr lost his life through the collision of a street car with the automobile he was driving, at the crossing of the car line by Natural Bridge road in St. Louis county. This action was brought by the administrator of his estate to recover the penalty provided by section 3262, Rev. St. 1929. The cause was tried to a jury in the circuit court of St Louis county, and resulted in a verdict and judgment for defendant. From such judgment, plaintiff prosecutes this appeal.

The facts of the case, in their general outline, are stated by appellant as follows:

'On the 5th day of September, 1927, at about 3:30 o'clock in the afternoon, Henry P. Kerr, the deceased, was driving a Ford sedan automobile in a northwesterly direction along Natural Bridge road. At the point where Natural Bridge road intersects the street car line of the defendant the automobile was struck by street car traveling in a southeasterly direction. The defendant maintained a single track, the track running in a general northwesterly and southeasterly direction. The street car track and Natural Bridge road intersect each other at an acute angle, the Natural Bridge road running more nearly north and south and the street car track running more nearly east and west. About fifty-eight feet back eastwardly from the intersection of the street car line and the Natural Bridge road there was a low embankment along the southern side of Natural Bridge road about one foot high and it gradually increased going east to a point about one hundred and fifty feet west to a height of probably eight feet. On the occasion in question trees and brush were growing along the top of this embankment. It was Labor Day and it was a clear day and the street and tracks were dry. There was some evidence to the effect that the warm weather had caused the tarvia on the Natural Bridge road at the intersection to melt and get on the tracks.

'The street car struck the automobile and rolled it under the front platform, and the street car ran for a distance, which, according to the estimates of witnesses, was all the way from sixty to one hundred and twenty feet. The testimony of the witnesses, both for plaintiff and defendant, was to the effect that the driver of the automobile approached the track and slowed down and then increased his speed and drove upon the track. Witnesses for plaintiff testified that the driver of the automobile was about fifty feet from the track when he slowed down. Witnesses for defendant, however, testified to the effect that the automobile slowed down from twenty to thirty feet from the track, and one witness for defendant testified that the automobile actually came to a stop about fifteen feet from the track.'

One of plaintiff's witnesses, Celeste Ebbing, testified: 'This automobile that was approaching was coming from the east, going west towards the crossing. I was sitting on the right-hand side and, of course, could see the automobile. When I first saw the automobile it was about fifty feet from the railroad crossing. He was moving fast. After I saw the automobile it looked like he put on his brakes and then released them. * * * When he slowed up he was about ten or fifteen feet from the car line and then he released his brakes and came on. He came at a greater rate of speed and got on the car track just in time to get hit. I did not pay any attention to any bells or whistles. As to any outcry when he slowed down and then suddenly started up again, we all did.'

The motorman, called as a witness by defendant, testified 'The car I was operating that day was a four-motor car, close onto seventy feet long, a big heavy car, heavier and longer than the average street car. The average street car runs about forty-five to forty-eight feet in length. I occupied the center of the front platform. The signal device on that car was an air whistle. * * * I saw the automobile between eighty and a hundred feet from the crossing. It was coming pretty fast, about thirty-five miles an hour, I should judge. I was practically the same distance as the automobile was and was coming about twenty-eight or thirty miles an hour. When I was about 350 feet from the crossing I blew the regular crossing whistle, and there wasn't any automobile, the road was clear and as I approached closer, I would say about a hundred feet from the crossing, I saw an automobile coming and I blew the whistle again the second time, and I started to stop and he slowed down about twenty feet from the track as if he was going to stop. I was about the same distance from the crossing. Then he started up as if he had his foot on the brake and it slipped off on the gasoline and put the gas to it; that is the way it appeared to me. He shot right up and I had my brakes set and pulled the sand and reversed the car, and by that time we were both on the crossing and that is when the collision occurred. * * * He slowed down and started up; I...