Shutz v. Wells

• Decision Date: 03 July 1924
• Docket Number: No. 18595.,18595.
• Citation: 264 S.W. 479
• Parties: SHUTZ v. WELLS.
• Court: Missouri Court of Appeals

264 S.W. 479

SHUTZ v. WELLS.

No. 18595.

St. Louis Court of Appeals. Missouri.

July 3, 1924.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Edgar Shutz against Rolla Wells, receiver of the United Railways Company, of St. Louis, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Ernest A. Green, both of St. Louis, for appellant.

Buder & Buder and Erwin E. Schowengerdt, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries suffered by plaintiff in a collision between an automobile in which plaintiff was riding and the defendant's street car. The Cause was tried to a jury. There was a verdict in favor of the plaintiff for $6,500. The defendant appeals,

The petition assigns as grounds for recovery negligence on the part of the defendant in operating its street car at an excessive rate of speed in violation of an ordinance of the city of St. Louis, and also negligence based upon the humanitarian doctrine. The answer was a general denial, coupled with a plea of contributory negligence.

The collision occurred at the intersection of Olive street, Channing avenue, and Lindell boulevard, in the city of St. Louis. Olive street runs east and west, veering to the north from the intersection westward; Channing avenue runs north and south; Lindell boulevard runs northeast and southwest. The defendant maintains on Olive street two tracks upon which it operates its street cars. The west-bound cars are run on the north track; the east-bound cars on the south track. The accident in which plaintiff received his injuries occurred about 10:45 o'clock on the night of September 14, 1023. There were four persons in the automobile. Mr. Richard Simpson and Miss Huber were in the front seat of the automobile, and Miss Bergman and plaintiff were in the rear seat. The plaintiff was seated on the right side and Miss Bergman on the left. Miss Huber was the owner of the automobile, and it was being driven by Mr. Simpson, who was her escort. The parties had attended a show at the Rialto Theatre on Grand avenue, and were returning home when the accident occurred. After the parties left the theater, they got into the automobile on Grand avenue, and the automobile, driven by Mr. Simpson, proceeded north on Grand avenue to Olive street, and thence east on Olive.

Mr. Simpson testified that he was driving down Olive street on the south side of the east-bound track, and, as he approached the intersection of Olive, Manning, and Lindell, he was following an east-bound street car approximately 60 feet back of the car; that when the car got to Channing avenue it stopped to discharge or receive a passenger; that when the car stopped he slowed down the automobile and came to within about 25 to 30 feet of the rear of the car before it started up again; that he slowed down to such a slow speed that the automobile did not pick up in high gear, and he threw it into second gear and proceeded east on Olive street; that at a point just east of the center line of Channing avenue he attempted to turn and proceed northward across the tracks on Channing avenue; that at the time he attempted to turn north the east-bound street car was about 125 to 150 feet from the automobile, and the automobile was about 3 feet south of the east-bound track; that as he neared the scene of the accident he looked east and could see what he judged to be about 125 to 150 feet distant and as he headed north he looked east again a distance of about 100 feet, and saw no car approaching on the west-bound track, and that he heard no bell or gong sounded; that at the time he crossed the track the automobile was traveling at a speed between 6, 7, or 8 miles per hour, and that he could have stopped the automobile in a distance of 3 to 5 feet; that, after he started to cross the tracks, he did not see the street car until the automobile was on the west-bound track; that the front wheels of the automobile were between the rails on the west-bound track when he first saw the approaching street car; that the street car was then approximately 12 to 15 feet from the automobile, and that thereupon within a fraction of a second the collision occurred; that, if the automobile had gone 5 or 6 feet further, the street car would have missed it; that in an additional one-half to three-quarters of a second the automobile would have cleared the overhang of the street car; that he knew of the existence of the city ordinance limiting the speed of street cars in that district to 10 miles per hour; that he calculated that at the rate of speed he was traveling he had more than sufficient time to cross the tracks in safety, and that he assumed that any street car approaching, that intersection would observe the speed ordinance, and would not be running to exceed 10 miles per hour.

Plaintiff testified that as the automobile reached Channing avenue and was about to turn north across the tracks into Channing avenue it was approximately 3 feet south of the east-bound track, and that the eastbound street car was at that time about 100 feet east of the automobile; that he looked both ways for a street car; that as the driver was turning the automobile to go north across the tracks plaintiff looked to the east a distance of about 100 feet to see if a street car was approaching, and saw there was no car within that distance; that when he looked and could see 100 feet to the east he took it for granted that, if there was a street car coming, the motorman would observe the speed ordinance, and that the automobile could cross the track in safety; that when he looked, and there was no street car in a distance of 100 feet, he thought the automobile could cross in safety; that when the automobile was going north across the tracks it was traveling at 6 to 8 miles per hour; that the gong or bell of the street car was not sounded as the street car approached the intersection ; that when he first saw the approaching street car the front wheels of the automobile were crossing the north rail of the west-bound track, and the street car was 10 feet away; that before the automobile could get off the track the street car struck the right side of the rear end of the automobile near the place where the plaintiff was seated, the north half of the front of the street car striking the automobile.

The speed of the street car as it approached the point of collision was variously estimated by plaintiff's witnesses at 20, 25, and 30 miles per hour. One of the Witnesses designated the speed as "enormous"; another as "terrific." One of defendant's witnesses said the car was running under full power, another estimated the speed at 10 to 12 miles per hour, and others at 8 to 10 miles per hour. The distance between the rails of the east-bound track was 4 feet 10 inches. The distance between the east-bound track and the west-bound track was 5 feet 8 inches. The distance between the rails of the west-bound track was 4 feet 10 inches. The overhang of the street car was about 24 inches. The wheel base of the automobile was about 10 feet.

There was evidence to show that the street car, running at 10 miles per hour, could have been stopped in safety to the passengers in a distance of 25 feet, and at 25 miles per hour in a distance of 85 feet. There was evidence tending to show that, after the collision, the street car ran a distance of 150 to 175 feet. There was evidence on the part of the defendant tending to show that the car only ran about 25 feet after the collision. When the collision occurred, the automobile was thrown to the northwest corner of Channing avenue and Olive street, a distance of 36 feet, and lodged against a lamp post and a telephone pole. One witness who examined the automobile after the collision stated that it appeared to have been struck by the street car near the rear wheel.

A witness who saw the accident from the sidewalk in front of his place of business on the south side of Olive street stated that the speed of the automobile as it crossed the car tracks was not over 6 miles per hour. There was evidence on the part of the defendant that the automobile was driven from behind the east-bound street car immediately in front of the west-bound car, and so close to it that it was impossible to avoid the collision. The motorman did not testify.

Defendant insists that the judgment of the court below should be reversed outright by reason of the contributory negligence of the driver of the automobile in which plaintiff was riding at the time of his injury, and also by reason of the contributory negligence of the plaintiff himself. This insistence necessarily assumes that the negligence of the driver must be imputed to the plaintiff, and that the evidence was insufficient to authorize a submission of the case to the jury under the humanitarian rule.

As the automobile was proceeding eastward on Olive street and nearing the intersection, the driver looked to the east a distance of approximately 125 feet for an approaching street car on the west-bound track, and saw none. When he turned north across the tracks, he looked again to the east, a distance of 100 feet, and saw no car. The automobile was then 3 feet south of the eastbound track. The automobile proceeded northward across the tracks at a speed of 6 to 8 miles per hour, and was struck by the west-bound street car near the rear end of the automobile just as it had about cleared the west-bound track. The street car was going westward at a high rate of speed. It was at least 100 feet east of the point of collision at the time the driver turned the automobile northward across the tracks. If the street car had been running at a lawful rate of speed of not exceeding 10 miles per hour, the automobile would have cleared the danger zone by a distance of 30 to 50 feet before the street car arrived at the point of collision. Defenda...