Schimmelpfenning v. Wells
| Decision Date | 31 December 1929 |
| Docket Number | 28082 |
| Citation | 24 S.W.2d 154 |
| Parties | SCHIMMELPFENNING v. WELLS |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled February 3, 1930.
T. E Francis and Vance J. Higgs, both of St. Louis, for appellant.
Eugene J. McMahon and Charles E. Morrow, both of St. Louis, for respondent.
SEDDON and ELLISON, CC., concur.
This is a suit for damages for personal injuries sustained by August Schimmelpfenning, who was struck by a street car operated by the defendant as receiver. It was alleged and the evidence was that the said injuries were permanent in character, and as a result thereof the injured man became incurably insane. He was adjudged to be a person of unsound mind by the probate court, and his wife, the plaintiff herein, as guardian, prosecutes this suit. At the time of the occurrence of his injuries, on March 20, 1925, he was 58 years of age. He was struck by a street car north bound on South Broadway, in the city of St. Louis, at or near the intersection of that street with Osceola street. Broadway extends from north to south, and Osceola from east to west. There are double tracks on Broadway, and north-bound cars use the east track. The time of the occurrence was at about 15 minutes after 4 o'clock in the morning, and while it was yet somewhat dark. Schimmelpfenning was on his way to his place of daily employment, and it had been his custom for some time to take the north-bound Broadway car, at about the hour mentioned, and at the Osceola crossing. On this occasion, as the car was approaching from the south, he and another man, one Henry P. Lutz, who had followed the same custom and also intended to board this car, were at the northwest corner of the intersection of Broadway and Osceola streets. As the car approached, they walked southeastward from the northwest corner, toward the southeast corner of the intersection, which was the stopping place of north-bound Broadway cars. The car approached rapidly, and no attempt was made by the motorman to stop it, or to check its speed, until it was very near the line of intersection of the two streets. The testimony as to the rate of speed of the car, and the circumstances under which Schimmelpfenning was struck and the car was stopped, will be noticed later. As the two men went diagonally across the intersection, Lutz was on the right and somewhat ahead of Schimmelpfenning. Lutz got across the east rail of the east track, out of reach, but Schimmelpfenning was struck and thrown a considerable distance, and severely injured.
The petition contained six specifications of negligence, but the plaintiff submitted her case upon three assignments of negligence. The petition alleged violation, and plaintiff submitted the question of violation, of the Vigilant Watch Ordinance, an ordinance which requires that motormen in operating each car 'shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving toward it, and on the first appearance of danger to such persons, or vehicles, the car shall be stopped in the shortest time and space possible.' The petition also alleged violation of section 2 of Ordinance 32926 of the City of St. Louis, which made it the duty of motormen in charge of street cars to operate the same 'in a careful and prudent manner, and at a rate of speed so as not to endanger the property of another, or the life or limb of any person, -- provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one city block shall be considered as proof of driving at a rate of speed which is not careful and prudent considering the time of day, and amount of vehicular and pedestrian traffic, condition of the street, and the location with reference to congested districts, intersecting streets, curves, residences or schools.' In connection with the recital of the terms of this ordinance, the plaintiff alleged that the car was driven into the intersection at a rate of speed in excess of 25 miles an hour. The other negligence charged and submitted was violation of the humanitarian rule. The answer was a general denial and a plea of contributory negligence on the part of Schimmelpfenning; and the reply was a general denial. The plaintiff had a verdict in the sum of $ 40,000, which the trial court refused to disturb.
The complaint of defendant, primarily, and inclusive of most of the questions raised on appeal, is the refusal of the court to sustain defendant's demurrer offered at the close of the case. Defendant unsuccessfully offered his instructions D, G, and H, which would have withdrawn severally the three specifications of negligence which were submitted to the jury. The complaints as to the refusal of these respective withdrawal instructions are embraced in the general assignment of error in the refusal of the demurrer. Additional to what is included in the foregoing, is the contention that plaintiff's instruction 2 is erroneous, and that the verdict is excessive in amount. The questions raised require a somewhat close consideration of the evidence.
The evidence is to be considered in view of the contentions of defendant: First, that the negligence of Schimmelpfenning is so conclusively shown as to leave no issue in that respect for determination by the jury, and for that reason no recovery could be had on account of any primary negligence of defendant; and, next, that there is no evidence that the motorman could have avoided a collision, after Schimmelpfenning became imperiled, and for that reason no case was made under the humanitarian rule.
The testimony shows that Wroadway is about 64 feet in width from curb to curb, and Osceola street about 36 feet in width from curb to curb. The north and south tracks on Broadway occupy the central portion of that street, and the distance from the west rail of the south-bound track to the east rail of the north-bound track is about 15 feet. The distance between the tracks is about 5 feet. The cross street next south from Osceola street is Wyandotte street; south of that is Dakota, and next south of Dakota is Neosho street. The evidence does not definitely show the respective distances between these cross streets. Plaintiff's witness Lutz testified that it had been the habit of himself and Schimmelpfenning, almost every morning during the winter months, to board the car known as the 4 o'clock owl car at the Osceola street crossing; that from the northwest corner of the intersection of Broadway and Osceola streets they could see the headlight of this car at Neosho street as it came from the south, and, seeing it, they then had ample time to cross to the southeast corner of Broadway and Osceola to the stopping place of the car, and to board the car. Lutz testified that on the occasion in question he saw the light of this car as it came to Neosho street, and that he started across the intersection, and Schimmelpfenning started at about the same time. Schimmelpfenning, on account of his condition, was not called to testify. Asked on his direct examination to tell the whole thing as he saw it and as it happened, Lutz said:
In the use of the expression 'he passed me,' Lutz evidently referred, not to Schimmelpfenning, but to the street car or the motorman. His testimony was that he could not judge of the speed of the car as it came towards him; that he was at the stopping place of the car, as far south as an iron post, about 15 feet south of the intersection, when the car passed him; that he was at the regular stopping place at the time of the impact of the car against Schimmelpfenning. On his cross-examination Lutz said he saw the car coming for two blocks; that he and Schimmelpfenning were almost all the time fronting the coming car; that Schimmelpfenning was at his side, was on the north or left of him as they crossed the street; and that he was not conscious that Schimmelpfenning was not with him, by his side, at any time.
Mat Smith, called by plaintiff, testified that he was a passenger on the car which struck Schimmelpfenning; that he boarded the car at a point south of Neosho street and sat in the third or fourth seat from the front end, and on the right or east side of the car; that as the car proceeded, he was looking toward the front; that he 'wouldn't say it was real dark.' He also testified, clearly referring to the conditions about the Broadway and Osceola intersection, that 'there were lots of lights around there, and the corner lights were burning.' The testimony shows that coming north from Wyandotte street toward Osceola, the street car track curves a little to the northeast. The witness Smith testified that as the car proceeded north, he saw 'two men on the tracks,' 'crossing to get the car.' He further said: They were going across to the east side of the street, to get the car, coming 'from the west curb.' Again, he said: ...
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