Smith v. Heibel
| Decision Date | 02 May 1911 |
| Citation | 157 Mo. App. 177,137 S.W. 70 |
| Parties | SMITH v. HEIBEL. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.
Action by Fred Smith against Adolph C. Heibel. Judgment for plaintiff, and defendant appeals. Affirmed.
Adolph E. Methudy and E. C. Kehr, for appellant. T. B. Wyrick and Wilfley, McIntyre & Nardin, for respondent.
At about 11:30 o'clock of the morning of October 7, 1909, defendant, residing near the intersection of Twentieth and Olive streets, in the city of St. Louis, and desiring to come down town, attempted to board one of the east-bound cars operated at that time along Olive street by the United Railways Company, the car coming from the west and running to the east. It was one of the days in what was known as "Centenial Week," in St. Louis, and a public parade attracting great crowds was being held. The car which plaintiff attempted to board was filled to overflow, so that plaintiff was not able to obtain even standing room inside of it or on the platforms but managed to plant himself on the "bumper," as it is called, an iron or steel coupling attachment fastened under the bottom of the car and extending about a foot behind it to the rear of the car. He stood on this bumper and held onto the back rail of the back platform of the car, having paid his fare to the conductor. There were many cars moving along the track at the time, and the car upon which plaintiff was riding was moving slowly from Twentieth street down toward Fourth street. When that car reached Twelfth street the parade referred to was crossing Olive along Twelfth, and a great crowd of people were standing along the street watching it. The defendant, at the same time, was driving in his automobile along Olive street, following this car upon which plaintiff was standing. How long he had been following the car plaintiff did not know, but the first time he noticed defendant and his automobile was about Fourteenth street. The automobile followed the car from there down, stopping when the car stopped, until, as plaintiff testifies, the car got to Eleventh street. The car stopped on the east crossing but the automobile which defendant was driving failed to stop and ran into the car. There was nothing in the shape of an obstruction between the automobile and the street car. When the car slowed down to stop the automobile did not stop until it ran into it. When the automobile ran into the car, the fore part of the automobile caught plaintiff on the leg just about at and above his ankle, pinning the leg between the bar on the front end of the automobile and the rear framework of the car, shoving plaintiff's foot under the body of the car, the automobile bar going directly over the bumper on which plaintiff was standing and holding him by his ankle against the car; as he says, "pushed the ankle of his left foot under the car;" with the result that the bone was broken just above the ankle and at the top of his shoe. He was held there for a second or so and when the automobile backed away he hobbled to the curbstone, then went to the city dispensary where his leg was done up and he was taken home. There he was put under the care of a surgeon and remained under his treatment for some six weeks. His leg was in a plaster of paris cast about six weeks. He had been earning about $5 a day at the time the injury occurred; his average earnings per day were about $3.50; he was not able to work and did no work from the time of the injury until the first or second of March following, that is, for about five months. When plaintiff first noticed that defendant made any effort to stop the automobile, he thought it was 10 or 12 feet away from the rear of the car. It had followed directly behind the car, as before stated, from Fourteenth street down to the place of the accident and plaintiff had noticed the automobile every time it made a stop; had watched when defendant made a stop to see that he didn't run up against the car; the automobile came up very close each time, but until the occurrence of the accident, had not touched him or the car.
A witness for plaintiff who was on the end of the car upon which plaintiff was riding, testified that he was facing to the west; that there was a crowd on the car and he had noticed defendant coming down in his automobile; that he got pretty close to the car before the street car got to Eleventh street; that it had got a little ahead of the automobile and when the car reached Eleventh street it stopped, but defendant couldn't stop his automobile. This witness saw plaintiff, whom he did not know at the time, hanging on behind. He saw him limp away and saw that the lamp on the automobile had broken and that the gentleman running it had gotten out and looked at it; saw defendant and plaintiff at the moment the collision occurred. Defendant reached down and grabbed hold of one of the brakes, he supposed, and it looked to the witness as if he missed it. "The street car was getting ready to stop," said this witness, "and the chances were he couldn't stop it (the automobile) in time;" didn't pay any attention to plaintiff and could not say whether he made any effort to get out of the way.
The surgeon who had attended plaintiff testified that when he took charge of the case he found a fracture of the outer bone— of the smaller bone—a little above the ankle joint. The injury had been dressed and when he was called into the case he removed the dressing and reset the bone to his own satisfaction and put on splints. After that he had called on him every second or third day for six weeks and after that plaintiff had called at his office. "The bone itself generally heals permanently but the soft parts near the fracture are likely to prove of more lasting injury." His charge, which he thought was reasonable, for taking care of this case, was $75.
This was substantially the version of the case as given on behalf of plaintiff.
Defendant's version is that he took his automobile from Nineteenth and Locust streets down Olive street, going to Tenth street, and was following the street car. The street was crowded and the police made him follow the car, going at a speed of two or three miles an hour. Between Tenth and Eleventh streets the car made a sudden stop. Defendant tried to stop his machine the best he could but bumped into the car. The street was "awfully crowded," as he said, and he further said that his machine did not hit plaintiff nor did he see any one else that was hurt; is familiar with the use of an automobile; knows how to start or stop one; made all the effort he could to stop the machine, but the street car stopped so suddenly that he had no chance to stop. Beyond the evidence of another witness for defendant, testifying as to plaintiff coming to defendant's office and saying that he did not know who hit him, and on being asked by defendant if he was the man, plaintiff said he was not, there was no other evidence given on behalf of defendant except that of the physician who had been in charge of the city dispensary, who testified that plaintiff had been brought in there about 11 o'clock in the morning of the day of the accident; that he examined his limb, found he had a fracture of the fibula of the left limb just above the ankle; set it temporarily; put on the dressing and had him sent home in an ambulance. In his opinion, a man would be disabled from an injury of that kind for from six to eight weeks but that there is no permanent injury.
These are the facts in the case, as shown by the abstract of the testimony.
The petition upon which the case was tried, set up the facts as above brought out by plaintiff's testimony, averring that by reason of the car being so densely crowded, plaintiff was unable to enter it but took a position on the "bumper," and that while in that position, and as the car moved eastward on Olive street, defendant drove his automobile up behind the car, and as the latter approached the intersection of Olive and Eleventh streets it slowed down for the purpose of coming to a standstill at the east side of Eleventh street, and that as the car so slowed down and was about to come to a full stop on the east side of Eleventh street, defendant "so carelessly and negligently operated and drove said automobile as to cause and suffer it to come in contact and collide with plaintiff located on the bumper of said car as aforesaid, and injuring him." Describing the injuries and that they are permanent and that he had lost and...
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