Snyder v. Western Union Telegraph Co.

• Decision Date: 03 November 1925
• Docket Number: No. 19060.,19060.
• Citation: 277 S.W. 362
• Parties: SNYDER v. WESTERN UNION TELEGRAPH CO. et al.
• Court: Missouri Court of Appeals

277 S.W. 362

SNYDER v. WESTERN UNION TELEGRAPH CO. et al.

No. 19060.

St. Louis Court of Appeals. Missouri.

November 3, 1925.

Rehearing Denied November 20, 1925.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be officially published."

Action by David Snyder, by his next friend, Samuel Snyder, against the Western Union Telegraph Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant Western Union Telegraph Co.

McMahon & Berthold, of St. Louis, for appellant Frank Theodore Sunderman.

Harry E. Sprague and Barney L. Schwartz, both of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. Plaintiff was struck by a motorcycle with a side car attached, driven by defendant Sunderman, and thus sustained the injuries sued for. Sunderman was, at the time of plaintiff's injury, in the general employ of the defendant Western Union Telegraph Company as a messenger. The cause was tried to a jury. There was a verdict and judgment in favor of plaintiff against defendants in the sum of $1,000. The defendants appeal.

Plaintiff was 5 years old at the time he was injured. The accident in which he was injured occurred on Gravois avenue, between Lynch street and Magnolia avenue. Gravois avenue runs in a northeasterly and southwesterly direction, and is intersected by Lynch street and Magnolia avenue, which run east and west. The distance from Magnolia avenue to the point where the motorcycle struck plaintiff is 200 feet. Magnolia avenue runs into Gravois avenue from the west, but does not extend east of it. For convenience, we will speak of Gravois as running east and west. There were two street car tracks along Gravois Avenue where the accident occurred. The motorcycle was traveling east along the center of the east-bound street car track on the south side of Gravois avenue, and the plaintiff was crossing Gravois avenue from the south to the north, at the time he was struck by the motorcycle. The south rail of the east-bound track was about 9 feet from the south curb of the avenue. The street was paved from curb to curb.

Among the assignments of negligence specified in the petition are the following: (1) That defendant Sunderman, and defendant Western Union Telegraph Company, by its servant and agent, while in the scope of his employment, negligently failed to maintain the brakes on the motorcycle in good working order; (2) that there was in force at the time of the accident an ordinance of the city of St. Louis providing that drivers of motor vehicles of all kinds shall, when approaching a crossing, sound their signals in such a way as to give warning of their approach, and that the defendant Sunderman, and defendant Western Union Telegraph Company, by its servant and agent, while in the scope of his employment, negligently failed to give a timely signal so as to warn plaintiff of the approach of the motorcycle in violation of said ordinance; and (3) that the defendant Sunderman, and defendant Western Union Telegraph Company, by its servant and agent, while in the scope of his employment, saw or by the exercise of ordinary care could have seen the plaintiff in a position of imminent peril, in time, by the exercise of ordinary care, with the means and appliances at hand, and with reasonable safety to the motorcycle and the persons therein to have stopped the motorcycle, or to have sufficiently checked the speed thereof, or to have swerved the same, and thereby avoided striking and injuring plaintiff, and negligently failed so to do.

The plaintiff submitted the case to the jury under the third assignment of negligence alone, and thus abandoned all other assignments of negligence specified in the petition.

The defendant Western Union Telegraph Company insists that there was no sufficient evidence to show that the defendant Sunderman was acting within the scope of his employment at the time of plaintiff's injury, and that, even if the plaintiff's evidence was sufficient to raise a presumption that Sunderman was acting within the scope of his employment at the time, such presumption disappeared when the defendants produced evidence showing that Sunderman was on a mission of his own, and that therefore its demurrer to the evidence offered at the close of all the evidence in the case should have been sustained.

Samuel Snyder, produced by plaintiff, testified:

"My son, David Snyder, suffered an injury in an accident on July 21, 1922. I am in the shoe-repairing business. My place of business is at 2716 Gravois avenue. The accident occurred in front of my place of business. I have known defendant Sunderman for 4 or 5 years. During that time he was working for the Western Union Telegraph Company. I saw him around the neighborhood every day, dressed in the uniform of the Western Union Telegraph Company, driving his motorcycle. When the accident happened I was standing right by my door, inside my place of business. The first knowledge I had of the accident, heard a woman exclaim, `Oh, my God, that is Snyder's kid.' I rushed right out. I asked Sunderman what he was in a hurry about. He said he had to deliver three more messages and was in a hurry. Sunderman was dressed at that time in the uniform of the Western Union Telegraph Company. I noticed a telegram sticking out of his pocket. I saw a couple of them a while afterwards. There was another young fellow with Sunderman riding in the side car. When I came out of my store, I saw this motorcycle run down to Lynch and turn around and come back opposite my store. I took the boy out from the side car and I asked Mr. Sunderman what was he in a hurry about, and he said he was in a hurry because he had three more messages to deliver. 1 did not see the accident."

Richard Mattas, produced by plaintiff, testified:

"I saw the accident in which plaintiff, Snyder, was injured. It occurred between 5 and 5:30 o'clock in the evening of July 21, 1922. It could not have been later than 5:30 when the accident occurred. Defendant Sunderman was driving the motorcycle. He was dressed in the uniform of the Western Union Telegraph Company. There was a young fellow in the side car. The Snyder boy was walking across Gravois avenue from south to north. He got just about the middle of the car track when he was struck by the motorcycle. He was caught in between the side car and the motorcycle and dragged in an easterly direction about 60 feet to Lynch street. There the lad in the side car pulled the child up into the side car, and they turned around at Lynch street and came back to the Snyder store."

Mrs. Gertrude Knoll, produced by plaintiff, testified:

"I saw the accident in which plaintiff was injured. I was sitting in my front yard on the north side of the street. I saw the child come across the street, and he was standing in the street, and he looked in every direction and wanted to go further, when the motorcycle with side car attached came along and hit him and dragged him a distance of about 60 feet before the motorcycle stopped. He had been standing in the street a second or two before he was struck. I saw the Snyder boy as he walked out from the south curb into the street. The motorcycle was traveling east. The man on the motorcycle was talking with the fellow in the side car. The accident occurred just a few minutes before 5:30. I looked at the clock on the church tower after the accident happened, and it was 5:30 then."

Defendant Sunderman, produced on behalf of both defendants, testified:

"I resided at 2227 Sidney street in July, 1922, which was southeast of the scene of the accident in which plaintiff was injured. I was employed by the Western Union Telegraph Company. I had worked for the company 2½ years. On July 21, 1922, in the afternoon of that day, I had been delivering messages for the Western Union. I worked out of the C. J. branch office at Jefferson avenue and Chippewa street. I left the branch office for my last trip at five minutes to 5 o'clock. In delivering messages I used a motorcycle with a side car attached. I had been using that motorcycle about a year and a half. It was my own motorcycle. I believe I had about seven messages to deliver when I left the office for my last trip. The last stop I made on that day was at Thirty-Ninth and Park avenue. I delivered a message there in a poolroom. That was the last message I had to deliver had delivered all the other messages except three. I had not delivered those three for the reason that one message was unknown and the other two were not at home. After reaching Thirty-Ninth and Park I went to Nebraska and Sidney. There was a drug store at Nebraska and Sidney. I went in there and called up the office by telephone, and told the lady in charge that I had three messages to bring back, and I told her so and so, went to here and there, one unknown, and two not at home. After telling her that, she said, `Well, that will be all.' So I said, `Good night.'

"Al Tappal is a friend of mine. On this evening I met him at his home at 2839 Magnolia avenue. After meeting him he got in the side car, and I drove east on Magnolia to Gravois. I turned into Gravois and drove in the middle of the east-bound track. I did not see the Snyder boy until the motorcycle struck him. The first time I saw him was right after I hit him. I didn't see him before then. Just as soon as saw the child I stepped on the brake. The motorcycle moved about ten feet before it came to a stop after striking the child. Then immediately this friend of mine picked up the child, set him in the side car, and I drove a distance of about seventy feet to Lynch street and turned west half a block to Dr. Padberg's office. I got out and found Dr. Padberg was not there, so I got on the motorcycle again and came back and stopped in front of Mrs. Knoll's home right across the street from Mr. Snyder's store, and asked her whose child that was, and she said...