Spears v. St. Louis Public Service Co.

• Citation: 202 S.W.2d 578
• Decision Date: 20 May 1947
• Docket Number: No. 27198.,27198.
• Parties: SPEARS v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

202 S.W.2d 578

SPEARS v. ST. LOUIS PUBLIC SERVICE CO.

No. 27198.

St. Louis Court of Appeals. Missouri.

May 20, 1947.

Motion for Rehearing or to Transfer to Supreme Court Denied June 20, 1947.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Moses C. Spears against St. Louis Public Service Company for damages sustained by plaintiff as a result of collision between his automobile and defendant's street car. Judgment for plaintiff and defendant appeals.

Reversed and cause remanded.

Mattingly, Berthold, Jones & Richards and Douglas H. Jones, all of St. Louis, for appellant.

Louis Yaffe, of St. Louis (Orville Richardson, of St. Louis, of counsel), for respondent.

ANDERSON, Judge.

This is a suit for damages sustained by plaintiff, Moses Cardinal Spears, as a result of a collision between his automobile, which he was driving, and a street car belonging to defendant, the St. Louis Public Service Company. The trial resulted in a verdict and judgment for plaintiff, from which judgment defendant has appealed.

The accident occurred in Webster Groves, near the intersection of Lockwood and Gray avenues. Lockwood avenue runs east and west, and Gray avenue runs north and south.

Plaintiff had come into Lockwood avenue from Gore avenue, which is the first street east of Gray avenue, and about 350 feet distant from Gray avenue. He had traveled south on Gore, and when he reached its intersection with Lockwood, he stopped his automobile. According to his testimony, he looked both to the east and west on Lockwood, but did not see any street cars or other traffic approaching from either direction. From that point, he could see a quarter or one-half block east. At that time, a Chevrolet coach was in front of him. He turned into Lockwood avenue, and proceeded west behind this Chevrolet coach to the point of collision, which he testified occurred about 300 feet west of Gore avenue. He drove his car on the street car tracks, about 15 or 20 feet behind the Chevrolet coach, at a speed of from 20 to 25 miles per hour. As the Chevrolet coach approached Gray avenue, it slowed down. At that time plaintiff also reduced the speed of his automobile to a speed somewhere between 5 and 15 miles per hour. He stated that he reduced the speed of his car gradually, and that he did not extend his left hand at the time, but kept both hands on his steering wheel.

Immediately after plaintiff slowed down the speed of his automobile, his car was struck in the rear by a street car of the defendant. At that time, plaintiff's car was somewhere between 8 and 15 feet behind the Chevrolet coach. The impact knocked plaintiff's automobile forward into the rear end of the Chevrolet coach. After the collision, the street car was caught on the rear bumper of plaintiff's car. The collision occurred about 25 or 30 feet east of Gray avenue.

Plaintiff further testified that he never at any time saw this street car prior to the collision; and that although he had a rear vision mirror in his car, at the time he slackened the speed of his car, he did not look into the mirror to see if anything was following him.

Albert Larson, a police officer, stated that while walking east on the north sidewalk of Lockwood, and when about 30 feet east of Gray avenue, he heard a loud report. He looked back, and saw that a street car had run into the back end of an automobile. The automobile which had been struck was facing west, and was in about the center of the street car track. Another automobile, which belonged to a Mr. Joy, had pulled off of Lockwood into Gray avenue. Larson stated that prior to the collision he had not noticed the street car. He examined the Joy car, and saw evidence that it had been run into on the left rear side. The rear end of the Spears' automobile was underneath the front part of the street car, and crowbars had to be used to pry them loose. He did not notice whether there was any damage to the front end of the Spears' car.

The witness further testified that Spears told him that his car was stopped when the accident happened.

The foregoing was all the evidence that plaintiff offered on the issue of defendant's negligence. Defendant offered no evidence on that issue. Said issue was submitted to the jury by plaintiff's Instruction No. 1, which is as follows: "The Court instructs the Jury that if you find from the evidence that on the occasion mentioned in evidence, the plaintiff's automobile was headed westwardly on Lockwood Avenue, and in the westbound streetcar tracks, and that the defendant's streetcar was east of plaintiff's automobile and was being operated westwardly, and that the streetcar overtook the plaintiff's automobile, if you so find, and that the operator of the streetcar negligently and carelessly allowed it to run into and collide with the rear end of the automobile, if you so find, and that as a direct result of such negligence, if any, on the part of the defendant, the plaintiff was injured, then, and in that event the...