Solomon v. Duncan

• Decision Date: 02 May 1916
• Docket Number: No. 14280.,14280.
• Citation: 194 Mo. App. 517,185 S.W. 1141
• Parties: SOLOMON v. DUNCAN et al.
• Court: Missouri Court of Appeals

185 S.W. 1141

194 Mo. App. 517

SOLOMON v. DUNCAN et al.

No. 14280.

St. Louis Court of Appeals. Missouri.

May 2, 1916.

Rehearing Denied May 16, 1916.

Appeal from St. Louis Circuit Court.

"To be officially published."

Action by David L. Solomon against Wayne A. Duncan and others. From a judgment for plaintiff, defendants appeal. Reversed without remand.

Chas. J. Macauley, Wm. B. Homer, and Sale & Frey, all of St. Louis, for appellants. J. W. Jamison, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for damage to plaintiff's automobile, occasioned by coming into collision with an obstruction in the street. There was a verdict and judgment below for plaintiff for $430, and the case is here on defendants' appeal.

On the night of December 2, 1909, plaintiff was driving his automobile west along the north side of Delmar avenue, a public street in the city of St. Louis, near its intersection with Aubert avenue, another public street in said city, when the machine struck a pile of debris on the top of which was an iron "radiator" such as is used for steam heating purposes. The obstruction mentioned was situated near the north curb of the street in front of a newly erected building at 4927 Delmar avenue, occupied by defendant Morris Schweig. The defendant Duncan was the general contractor for the erection of the building, and the defendant Urbauer-Atwood Heating Company, as a subcontractor, furnished and installed the heating plant thereof, including the radiators. The defendants are charged with negligence in placing the aforesaid obstruction in the street, and in failing to maintain thereon a warning light. The suit originally proceeded against other defendants also, but was later dismissed as to all defendants except these appellants. The petition charges negligence both at common law and as for a violation of certain ordinances of the city of St. Louis. An amendment of the petition was allowed during the trial, and questions are here raised respecting that matter. But we find it unnecessary to consider this or to notice the pleadings with particularity.

On the night of the casualty plaintiff and a friend, one Lukens, spent the evening "down town," where they had "something to eat and something to drink" at "McTague's," a restaurant or café, from which place they drove west in plaintiff's automobile driven by plaintiff. According to their testimony it was "about midnight" when they reached "Cicardi's," another place where food and drink are served, on the north side of Delmar avenue not far east of the point of collision. They say that they stopped in front of "Cicardi's," but did not enter, having decided to first put the automobile in plaintiff's nearby garage, and that they thereupon proceeded west until they ran into the aforesaid obstruction opposite the building of defendant Schweig. According to all the evidence, the automobile not only struck the radiator lying upon the top of the pile of débris, but climbed upon and went partly over it, whereby the machine was badly injured. It was a dark night, foggy or misty, and the streets were wet.

Lukens testified that the obstruction consisted of a pile of débris 2 or 2½ feet high, on the top of which was the radiator; that the center of the débris was about 3 or 4 feet from the curb, and the heap or pile extended to the curb. He said that the inner wheels of the automobile were about 3 or 4 feet from the curb when the machine stopped.

Plaintiff stated that the pile of débris was "at least 2½ feet high, and with the radiator it was 3 feet high," and that he was driving "at least 4 to 6 feet, or 4 feet," from the curbing.

Plaintiff and Lukens both testified that the speed of the automobile was about 8 or 10 miles an hour. They were the only eyewitnesses to the collision, but a negro chauffeur acquainted with plaintiff, who saw the latter's automobile when about 125 feet east of the point of collision, testified that the speed thereof was then about 8 miles per hour. This witness heard the explosion of a tire on plaintiff's automobile, and went to the scene of the collision. He stated that the radiator was 2 or 2½ feet from the curb.

Though the testimony as to the speed of the automobile is such as mentioned above, both plaintiff and Lukens testified that the latter was thrown from the automobile by the force of the collision, struck the street pavement about 5 feet from the automobile, slid along the street about 15 feet, and was consequently about 20 feet from the automobile when "picked up."

Both plaintiff and Lukens testified that plaintiff's automobile was equipped with acetylene gas headlights which were in good condition and brilliant. As to these lights Lukens said:

"They make an exceedingly strong light, next to daylight."

Plaintiff said:

"I had a good light on my machine, and I am a manufacturer of gas tanks and acetylene gas, and certainly know how to use it."

On direct examination the plaintiff said that with his strong acetylene headlights he could not see more than 8 or 10 feet ahead of him on account of the fog or mist. When asked on cross-examination as to how far the headlights would cast light so as to enable him to discover obstructions or objects in front of the automobile on the particular night, in view of the weather conditions, his answers were very evasive. He at first said that he thought that he could not see clearly 10 feet ahead of him. Being further pressed as to this, he said:

"I could see ahead of me; yes; but I couldn't see down in front of me where this was. Q. Could you see objects in the street ahead of you 10 feet? A. I could see ahead of me 10 feet."

Later he said that he could not see this obstruction because he "couldn't see distinctly 10 feet ahead."

Lukens testified that he thought one could see about 50 feet ahead of the automobile with the aid of the headlights on that particular night.

Plaintiff testified that his brakes, both foot brake and emergency brake, were in good condition, but that he could not stop as quickly on a wet pavement as on a dry one. When asked whether or not he could have stopped his automobile in less than 15 feet under the conditions present, and being pressed as to this, he said:

"If it had not been foggy and I could have seen the obstruction, I could have. If I would have had to stop I probably could have stopped the machine in a few feet less than 15 feet, if I had seen the obstruction around 10 feet."

Lukens testified that, in his judgment, the automobile could have been stopped in 40 to 50 feet.

Defendants Duncan and Schweig were called as witnesses for plaintiff. Duncan testified that the pile of dirt was "right in the curb" and extended into the street only about 3 feet, and that one end of the radiator was on the curb, and that the other rested on the dirt or débris. Schweig testified that the radiator was "lying mostly on the sidewalk," with perhaps 10 inches thereof extending beyond the curb into the street, resting upon the pile of dirt or débris.

There is considerable testimony in the record relative to the location of a tool cart of the Laclede Gaslight Company which is said to have been standing in the street. According to the testimony of plaintiff, Lukens, and the negro chauffeur, this cart was from 50 to 100 feet west of the point of collision. According to some of defendants' testimony the cart was a short distance east of the débris. The evidence tends to show that no warning light was upon the obstruction into which plaintiff's automobile ran. There is a sharp conflict in the evidence as to whether or not there was a red light on the tool cart above mentioned.

Other phases of the evidence need not be here noticed. There are many questions raised by appellants and discussed in the briefs, but in the view which we take of the case it is unnecessary to discuss any assignment of error except that pertaining to the ruling of the trial court on the demurrer to the evidence. This is for the reason that a consideration of the evidence in the record before us has led us to the conclusion that plaintiff was guilty of such negligence on his part as to preclude a recovery herein as a matter of law. According to plaintiff's own testimony this pile of débris was at least 2½ feet in height with an iron radiator lying on top thereof; and, according to all of the evidence, the débris and radiator were within, at most, a few feet of the north curb of the street. Defendants' testimony is that the radiator was for the most part upon the sidewalk or curb, and but a small part thereof extended into the street and rested upon a small pile of dirt or débris. Viewing the testimony in the light most favorable to plaintiff, manifestly the driver of an automobile approaching this obstruction could, under the circumstances, readily have avoided collision therewith either by turning the machine aside or by stopping it, if in the exercise of ordinary care to have it under control and to keep a lookout ahead.

The testimony in plaintiff's behalf to the effect that he was driving but 8 or 10 miles per hour at the time of the collision is so far refuted by the physical facts that we would perhaps be justified in rejecting it altogether. In view of the fact that the force of this collision was such as to damage the automobile in the manner and to the extent shown by the evidence, and was likewise such as to hurl a passenger from his seat and cast him 20 feet from the machine, it would seem that a court ought not to be asked to give any probative force or effect to testimony of witnesses that the speed of the automobile was only 8 or 10 miles per hour. Likewise the testimony of plaintiff to the effect that he could not discern an object of the size and height of this obstruction 10 feet ahead of his automobile with the aid of powerful headlights, even on a night such as that described, is well-nigh, if not wholly, incredible.

But as to this phase of the case we...