Smith v. Weilbacher Truck Service Co.
| Decision Date | 03 March 1931 |
| Docket Number | No. 21425.,21425. |
| Parties | SMITH v. WEILBACHER TRUCK SERVICE CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; M. Hartmann, Judge.
"Not to be officially published."
Action by Gibson Smith against Weilbacher Truck Service Company and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
James R. Claiborne and Burr S. Goodman, both of St. Louis, for appellants.
Everett Hullverson and Allen, Moser & Marsalek, all of St. Louis, for respondent.
This is an action for damages for personal injuries received by plaintiff in an automobile collision, which is alleged to have occurred on January 18, 1929, as the direct result of the negligence of defendants Weilbacher Truck Service Company and Truck Terminal Company. Upon a trial to a jury, a verdict was returned in favor of plaintiff, and against both defendants, in the sum of $3,500; and, from the judgment rendered, defendants have duly perfected their joint appeal.
The accident occurred at or near the intersection of Broadway and Iron street, in the city of St. Louis, at approximately 2 o'clock in the morning. The evidence showed that Broadway at the point of the accident is fifty or sixty feet in width; that it has north-bound and south-bound car tracks in the middle of the street, with corresponding distances between the outer rails of the tracks and the curbs on either side; and that the street is paved with cobblestones, save for spaces eight or ten feet in width alongside the car tracks, which are paved with asphalt.
Plaintiff was driving northwardly on Broadway in his automobile, with his left wheels upon the north-bound street car track, leaving a space of ten or fifteen feet between his automobile and the east curb. His speed was about twenty miles an hour, and as he drove he permitted his left arm to rest in the open window to his side. He first saw the truck, which later figured in the collision, when it was yet a block or so away from him. It seems that the truck or tractor had a trailer attached to it, and that it was being driven southwardly in such a position that it covered both inner rails of the two car tracks, leaving a space of twenty or twenty-five feet between the right side of the truck and the west curb.
At the early hour of the morning there was no traffic upon the street save the truck and plaintiff's automobile, and it is to be inferred that both vehicles were being driven wholly or partly upon the car tracks, rather than upon the asphalt, by reason of the fact that the surface of the street was wet, and that the cobblestones very probably furnished better traction than did the asphalt.
Plaintiff's evidence was all to the effect that the speed of the truck, which was estimated at from thirty-five to forty miles an hour, was not slackened at any time before the collision. When he first saw the truck, he observed that it was zigzagging between the rails, and, though he appreciated the fact that such a method of driving was dangerous, he continued on in his course, thinking that the driver of the truck would turn the same over upon his own side of the street. As the vehicles came within fifteen feet of each other, plaintiff changed his course to the right, and, just as they met, the driver of the truck likewise attempted to pull to his right. Plaintiff had succeeded in getting his front wheels clear of the car track, though his left rear wheel was still upon it, when the rear end of the trailer swung to the left, striking the side of his automobile, and injuring his left elbow, which was protruding through the open window.
While the evidence, even from plaintiff's own side of the case, was not of one accord upon the question, at least one of his witnesses testified unequivocally that, if neither vehicle had changed its original course, the two would not have met in a head-on collision.
It appears that, following the accident, the truck was not brought to a stop, and that plaintiff, in an endeavor to learn the identity of the driver, was forced to turn his automobile around in the street, and pursue the truck for several blocks until he overtook it. The driver of the truck at once disclaimed all knowledge of the accident, which, incidentally, was the theory of the defense interposed at the trial. However, a police officer, who was put upon the stand by the defendants, testified that he heard the conversation between the two drivers; that he examined the sides of both vehicles at the time; and that he found fresh marks at the same height, on both the trailer and the automobile, which could have been made by contact between the two.
Plaintiff's evidence showed that the name of defendant Weilbacher Truck Service Company was painted upon the side of the truck, and the driver admitted that he was in the employ of that company. In the further course of defendants' evidence it appeared that the truck consisted of a 2½-ton tractor, with a 5-ton trailer, and probably a 10,000-pound load.
The negligence pleaded and relied upon by plaintiff was the operation of the truck at a dangerous and excessive rate of speed under the circumstances, and the violation of the ordinances of the city of St. Louis, requiring vehicles, when in operation, to be kept as close to the right-hand side of the street as practicable, and the drivers thereof, when meeting other vehicles coming from the opposite direction on the same street, to turn to the right of the center of the street, so as to pass without interference.
The joint answer of defendants was a general denial, coupled with a plea of contributory negligence.
While the reply does not appear of record, it evidently was drawn in the conventional form.
The principal point relied upon by defendants for a reversal is that their requested peremptory instruction in the nature of a demurrer to all the evidence should have been given. Looking to their brief and argument in its entirety to ascertain the grounds upon which they base their claim of error, we find them urging that under the provisions of section 10725, R. S. 1919, the driver of the truck was not obliged to yield the center of the road to plaintiff's automobile; that proof that the truck was in the center of the highway, and there collided with plaintiff's automobile coming from the opposite direction on the right side of the center of the highway, did not in and of itself constitute proof of negligence on the part of the driver of the truck; that there was a total failure of proof that defendant Truck Terminal Company had any connection with the operation of the truck so as to be held to respond for the driver's negligence; and that plaintiff himself was guilty of contributory negligence as a matter of law.
It is a significant fact that defendants have no...
To continue reading
Request your trial
-
Bilsky v. Sun Ins. Office, Ltd., of London, England
... ... 6376; Pawley v ... Steam Gauge Co., 131 N.Y. 100, 29 N.E. 999; Smith v ... Lawrence, 98 Maine 92, 56 A. 455; Menn. v. State ... (Wis.), ... Gately Stores (Mo. App.), 24 S.W.2d 200; Smith v ... Weilbacher Service Co. (Mo. App.), 35 S.W.2d 996; ... Bramblett v. Harlow (Mo ... ...
-
Chenoweth v. McBurney
...Riley v. Young, 218 S.W.2d 805; Crawshaw v. Mable, 52 S.W.2d 1029; Johnessee v. Central States Oil Co., 200 S.W.2d 383; Smith v. Weilbacher Truck Service, 35 S.W.2d 996; Columbia Taxicab Co. v. Roemmich, 208 S.W. 859. Defendant McBurney was guilty of contributory negligence as a matter of l......
-
Kick v. Franklin
... ... Amer. Ins. Union, 33 S.W.2d 1052; Smith v ... Weilbacher, etc., Co., 35 S.W.2d 996; Woods v ... Moffitt, 38 ... Leingang v. Geller Co., 73 S.W.2d 256; Cotton v ... Ship-by-Truck, 85 S.W.2d 80; Arnold v. May ... Department Stores, 85 S.W.2d 748; ... ...
-
Berry v. Harmon
...Shepard v. Harris, Mo.Sup., 329 S.W.2d 1; Johnessee v. Central States Oil Co., Mo.App., 200 S.W.2d 383, 388; Smith v. Weilbacher Truck Service Co., Mo.App., 35 S.W.2d 996, 997; Llywelyn v. Lowe, Mo.App., 239 S.W. 535, There is no contention by appellant Berry that a jury case was not made a......