Seithel v. St. Louis Dairy Co
| Decision Date | 07 December 1927 |
| Docket Number | 26303 |
| Citation | 300 S.W. 280 |
| Parties | SEITHEL v. ST. LOUIS DAIRY CO |
| Court | Missouri Supreme Court |
Mark D Eagleton, John F. Clancy, W. E. Moser, and Harry S. Rooks all of St. Louis, for appellant.
Bryan Williams & Cave, of St. Louis, for respondent.
Respondent accepts appellant's statement of the case, which is substantially as follows:
Plaintiff, while a pedestrian in a public street in the city of St. Louis, was struck and injured by defendant's (respondent's) automobile, and by next friend brought this suit to recover damages. A trial resulted in a verdict and judgment for defendant, and plaintiff, after an unavailing motion for new trial, appealed to this court.
Plaintiff's amended petition (on which the case was tried) is conventional in form and alleges that the collision and injuries were caused by negligence of defendant in several particular respects, including negligent speed, failure to signal, failure to stop, slacken the speed of, or turn or swerve the automobile to avoid the collision, failure to exercise care to discover plaintiff, negligent swerving of the automobile into plaintiff, and violation of a 10-mile speed ordinance. The petition also alleges negligence of defendant under the humanitarian doctrine in that after the defendant saw or by exercise of ordinary care would have seen plaintiff approaching and in a position of imminent peril, defendant negligently failed to stop, slacken the speed of, or swerve the automobile, or give warning, and thereby avert the collision, although defendant by the exercise of ordinary care could have done so. Resulting serious and permanent injuries are alleged, for which $ 25,000 are prayed.
Defendant's answer was a general denial coupled with allegations of plaintiff's contributory negligence in failing to keep a vigilant watch for vehicles, failing to look, failing to listen, and running into the street without looking or listening for approaching vehicles. Plaintiff's reply was a general denial. It was admitted that the automobile involved was owned by defendant and was being driven by one Charles Riedweg on business of defendant, and that the streets involved were public highways.
Plaintiff was crossing Nineteenth street, between Morgan street and Franklin avenue, in the city of St. Louis, when struck. Nineteenth street runs north and south, is about 35 or 40 feet wide, from curb to curb, and is paved with asphalt. Morgan and Franklin are consecutive east and west streets, Morgan being the next street south of Franklin. The block from Morgan to Franklin is a long block, and on the east side of Nineteenth street, from Morgan to Franklin, is the Franklin school. An east and west alley intersects the west side of Nineteenth street at about the middle of said block, but does not run through on the east side where the school is. Plaintiff testified without contradiction that there was a curve in Nineteenth street (a 'slanty street,' as he expressed it), so that when starting to cross Nineteenth street from the east side he could only see south along Nineteenth street to a point a little past Morgan street; the curve kept him from seeing further. He could not see two or three hundred yards down Nineteenth street.
The collision occurred on Saturday morning, April 14, 1923, at about 10:30 or 11:30 a. m., at a point in Nineteenth street about midway between Morgan and Franklin. Defendant's automobile (a Ford coupe) was north-bound along Nineteenth street, and plaintiff was attempting to cross Nineteenth street from the east side to the west. Plaintiff's testimony in his own behalf disclosed the following facts:
Plaintiff was about 14 years of age when injured. He attended the Franklin school and on that Saturday morning with other pupils he had played in the school yard until the school janitor told them that it was time to lock the gates. Plaintiff then left the yard at the gate and attempted to cross Nineteenth street from the east side at a point opposite 'about one door north of' the alley and a little bit north of the middle of the block. Plaintiff was alone. There was a teachers' meeting at the school that morning, and their automobiles, about five in number, were parked on the east side of Nineteenth street. All the parked automobiles were to plaintiff's right when he started to cross the street; none being to his left or south of him. When plaintiff was leaving the east curb he looked to the south along Nineteenth street and there were no vehicles in sight on Nineteenth street. He could see as far as Morgan street. Plaintiff then started to cross, but did not go directly west, but 'angled' somewhat towards the northwest. After getting out past the parked automobiles to his right he looked north along Nineteenth street and did not see anything coming from that direction. Plaintiff walked northwest in the street until he reached about the middle of Nineteenth street, when he thought of a crippled boy with whom he had been playing in the school yard, and plaintiff turned around (turned to his right) in the middle of the street to call to the boy to ask if he wanted to be helped across the street, and just as plaintiff turned he was struck in the right side of his stomach by the right front fender of defendant's automobile, which had run upon him from the south. Plaintiff did not see or hear the automobile at all before he was struck, and it gave no signal. After striking plaintiff the automobile traveled about 15 feet and came to a stop, headed northwest, about 5 feet from the west curb of Nineteenth street, down near the intersection with Franklin avenue. The automobile had turned and was headed northwest when it struck plaintiff in the middle of the street. Plaintiff was about 10 feet out beyond the parked automobiles when he was hit.
An ordinance of the city of St. Louis (section 1301 of the Revised Code, Ordinance No. 30003) was duly read in evidence, providing that automobiles on the city streets shall not be run 'at a greater rate of speed than is reasonable, having regard to the traffic and use of such street,' 'or so as to endanger the life or limb of any person,' and shall not in any event be run at a greater rate of speed than ten miles per hour.
The evidence tended to show that as a direct and proximate result of the collision plaintiff sustained serious injuries, necessitating an operation and long confinement in a hospital, and resulting in severe permanent disability. By agreement of counsel all of the evidence relating to plaintiff's injuries has been omitted from the abstract of record because the extent of the injuries is not involved on this appeal.
Charles Riedweg, who was driving the automobile, was an inspector for defendant and testified as a witness for defendant to the following facts:
One of defendant's drivers had telephoned in that he had run short of milk, and Riedweg had just left the defendant's dairy (located at Twentieth and Pine streets) with some milk which he was taking to the driver. Riedweg drove north on Nineteenth street and did not exceed ten miles per...
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Shumate v. Wells
...minds trained in the technique of pleading could have reconciled these instructions with the one given for plaintiff. [Seithel v. St. Louis Dairy Co., 300 S.W. 280.] According to Instruction No. 5 the motorman was not required to make any effort to stop his car or check its speed until the ......