Schroeder v. Wells

• Decision Date: 16 September 1927
• Docket Number: No. 27646.,27646.
• Citation: 298 S.W. 806
• Parties: SCHROEDER v. WELLS.
• Court: Missouri Supreme Court

298 S.W. 806

SCHROEDER v. WELLS.

No. 27646.

Supreme Court of Missouri, Division No.

September 16, 1927.

Motion for Rehearing Overruled October 10, 1927.

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

Action by Paul Schroeder against Rolla Wells, Receiver of the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed, on condition of remittitur.

T. E. Francis and Vance S. Higgs, both of " St. Louis, for appellant.

Mark D. Eagleton and John S. Marsalek, both of St. Louis, for respondent.

GRAVES, P. J.

Action for personal injuries alleged to have been caused plaintiff by the negligence, of defendant in the striking by a street car of the automobile in which plaintiff was riding.

This is the second appeal by defendant in this case. For the first appeal, see Schroeder v. Wells (Mo. Sup.) 276 S. W. 09. At the first trial defendant had a verdict from the jury, which verdict was set aside by the trial court upon the hearing of the motion for new trial. This motion was sustained upon the ground that the court had erred in giving improper instructions for defendant. Upon the hearing in this court no defense was made of the instructions. We wrote the opinion, then, and say now, as we said then, no defense could have been made of several of those Instructions. As a consequence, the question of contributory negligence and other questions were pressed. The net result was that we ruled: (1) That the alleged contributory negligence of plaintiff was a question for the jury; (2) that the facts showed a violation of the vigilant watch ordinance; (3) that there was a clear violation of the speed ordinance, which the jury could conclude was the proximate cause of the injury; and (4) evidence to support the humanitarian charge of negligence. The second and third rulings were forced by a certain contention of counsel, as indicated by our opinion.

At the first trial, after the trial court overruled the defendant's demurrer to the evidence, the plaintiff then submitted his case upon the sole theory of the humanitarian rule, thereby abandoning four other grounds of alleged negligence. It was the contention of defendant's counsel that the evidence failed to show negligence within the meaning of the humanitarian rule, and therefore the trial court erred in overruling the demurrer to the evidence, and the order granting a new trial should be affirmed. This contention brought forth our remarks, as to the two grounds of primary negligence above specifically stated. The question is aside on this appeal. The case comes here upon the same pleadings, but the plaintiff broadened his submission. He submitted more than the one ground of negligence. Shortly stated, the petition charges: (1) Violation of the vigilant watch ordinance of the city of St. Louis; (2) common-law negligence, in that the car was run at a high, dangerous, and excessive rate of speed under the surroundings and circumstances; (3) violation of the St. Louis speed ordinance, the limit of which was 15 miles per hoar at place of accident; (4) the humanitarian rule; and (5) common-law negligence in failing to give warning of the approach of the car. Answer is (1) a general denial, and (2) a plea of contributory negligence in three ways, specifically set out; and these can well be left to the opinion. Reply was general denial.

At the second trial the plaintiff submitted his case upon three grounds of negligence, i. e.: (1) Violation of the vigilant watch ordinance; (2) violation of the speed ordinance; and (3) the humanitarian rule. The court, at defendant's request, withdrew from the jury the alleged failure to warn plaintiff of the approach of the car—this, evidently, and properly, upon the theory that plaintiff saw and knew of the approach of the car.

Upon the conclusion of this second trial, the jury returned a verdict for $25,000. The trial court, at the time the defendant's motion for new trial was considered, ordered that if the plaintiff would remit the sum of $5,000 within 10 days, the motion for new trial would be overruled; otherwise, it would be sustained. Plaintiff remitted the $5,000, the motion for new trial was overruled, and a new judgment was entered on March 17, 1926, for $20,000, from which the present appeal was taken.

Plaintiff and his wife were joint owners of a Dodge automobile. At the time of the accident to plaintiff the wife was driving. The place of accident was Arsenal street in the city of St. Louis (an east and west street), at a point between Oak Hill street, an intersecting street on the west, and Russell place, an intersecting street on the east. Defendant had and operated a double-track street car line in Arsenal street. Appellant, in the brief, says:

"The collision occurred on Arsenal street in the city of St. Louis. The street follows an east and west line. In the center there are two street car tracks, upon which defendant operates street cars. Distances necessary to be referred to are as follows: Each street car track is 5 feet wide from rail to rail. The space between the two sets of tracks is also 5 feet; that is, from the inside rail of one track to the inside rail of the other track. Consequently, the space occupied by the tracks, from the outermost rail of the other, is 15 feet. From the north rail of the west-bound, or north, track to the north curb of Arsenal street, is 18 feet 3 inches. (See Abstract, p. 132.)

"The point of collision is between intersections. The nearest intersecting street is Russell place, which is east of the site of the collision. The nearest intersecting street to the west of this site is Oak Hill, which crosses Arsenal street at a point about 350 feet west of the site of the collision.

"On the 23d day of April, 1919, at about 5:45 p. m., plaintiff and his wife were driving west on Arsenal street in a Dodge touring car, which they owned jointly. It was daylight, and a dry, clear day. Plaintiff's wife was driving the car, and he was the only other occupant. They passed Russell place, going west on the north side of Arsenal street at a rate of 10 or 12 miles an hour, intending to turn in Arsenal so as to stop with the front of the Dodge car facing east on the south side of the street and before a house numbered 4036 Arsenal street, where plaintiff's brother lived. At a point about as far west of Russell place as 4036 Arsenal, plaintiff's wife turned the car so as to head it south and drove across the street car tracks at a speed of 5 or 6 miles an hour. A car was approaching from the west, running east on the south or east-bound track, and when the automobile had almost cleared this track (according to the testimony most favorable to plaintiff), it was struck by the east-bound car and plaintiff and his wife both thrown out. Plaintiff and his wife both saw the car while it was still west of the Oak Hill stop or crossing, and plaintiff testified that he saw four or five passengers at that point waiting to board it.

"There was much evidence on both sides concerning the speed of the car and the distance it ran after the collision. Upon these points the testimony was in sharp conflict." (The italics are ours.)

The car passed up its passengers at the Oak Hill street intersection.

The above sufficiently outlines the case for a consideration of the points now urged, and further details of the evidence will be given so far as necessary for the disposition of the points.

The points made are: (1) That both plaintiff and his wife were guilty of contributory negligence as a matter of law; (2) error in giving instruction 1-A for plaintiff; (3) excessiveness of the verdict of $25,000, and excessiveness of judgment after remittitur; (4) improper and prejudicial argument made by plaintiff's counsel; and (5) that "the grossly excessive verdict and the extremely prejudicial argument make it manifest that defendant did not have a fair trial."

While the assignment of errors may be a little broader, these are the only points briefed, argued, and now presented in either brief on the argument.

A careful reading of the present record has not changed our mind that the question of the alleged contributory negligence of plaintiff (and of his wife, so far as that is concerned) was a question for the jury. It could not be declared as a matter of law that plaintiff was guilty of negligence. We have given the appellant's statement as to measurements of the tracks and the street, supra; but a few more facts from plaintiff's standpoint must be given. From their side of the case it appears that just before they started to turn the automobile, it was going west about 3 to 4 feet from the north curb of the street and was 7 to 8 feet from north rail of the west-bound street car track. At this time they saw the approaching east-bound car, but it was quite a distance west of Oak Hill street; this intersection was a regular stopping place for street cars, and there were 4 or 5 passengers at the regular stopping place waiting to board this east-bound car, and this fact was seen and known by plaintiff.

That the matter may be clear, Oak Hill street is shown to have been 350 feet west of point of accident, and Russell place about 200 feet east of point of accident. Upon the question of contributory negligence, these facts are for consideration. Unterlachner v. Wells, 296 S. W. 755 (recently decided at this term, but not yet [officially] reported); Lackey v. United Railways Co., 288 Mo. loc. cit. 140, 231 S. W. 956. These passengers were passed up, and the street car continued to run heedlessly eastward at a rate of speed estimated from 35 to 45 miles per hour, as shown in the present record. The contention is that plaintiff says that he saw the street car, but for the first time saw its speed, when the street car was 150 to 200 feet from their automobile, and that the street car was moving 45 miles per hour, and that at this time their automobile was 7 feet north of the ...