Spriggs v. Calumet Cab Co.

• Decision Date: 05 May 1942
• Docket Number: No. 26036.,26036.
• Parties: SPRIGGS v. CALUMET CAB CO. et al.
• Court: Missouri Court of Appeals

161 S.W.2d 741

SPRIGGS v. CALUMET CAB CO. et al.

No. 26036.

St. Louis Court of Appeals. Missouri.

May 5, 1942.

Error to St. Louis Circuit Court; William L. Mason, Judge.

"Not to be reported in State Reports."

Action by John Thomas Spriggs against Calumet Cab Company and another for damages resulting from an automobile collision. To review a judgment for plaintiff, defendants bring error.

Affirmed.

Harvey V. Tucker and George L. Vaughn, both of St. Louis, for plaintiffs in error.

Benjamin B. Smith and Milton Keiner, both of St. Louis, for defendant in error.

HUGHES, Presiding Judge.

This is an action for damages resulting from an automobile collision at the intersection of Finney and Spring Avenues in the City of St. Louis. Finney Avenue runs east and west and Spring Avenue runs north and south. Plaintiff was driving his automobile east on Finney Avenue and was in the course of making a left hand turn in order to proceed north on Spring Avenue. Defendant's taxicab was proceeding west on Finney Avenue, and came in collision with plaintiff's car as it was making the turn. Plaintiff had judgment for $350 and the case reaches this Court by writ of error.

Plaintiff's petition charged both primary negligence and negligence under what is usually termed the humanitarian rule, in that defendant after he saw, or by the use of ordinary care could have seen, plaintiff's car in a position of imminent peril in time to have stopped, slowed down or swerved the taxicab and prevented the collision, negligently failed to do so. Plaintiff went to the jury on the theory of the humanitarian rule only, hence we are not concerned with the charges of primary negligence.

Plaintiff's testimony was that when he was turning left on Spring Avenue, driving at a rate of speed of 15 miles per hour, and his car had reached a point where it was half way across the north half of Finney Avenue, the taxicab was 60 feet to the east on Finney Avenue, and approaching at the rate of speed of 45 miles an hour; that the taxicab driver applied the brakes to his car when it was 30 feet from plaintiff's car; that the taxicab driver did not swerve his car or attempt to go around plaintiff's car but came straight into plaintiff's car, striking the center of the car; that there was ample space for the taxicab to have gone around him.

John L. Williams, a witness called by plaintiff, testified that as the taxicab approached the driver was talking with a man in the back seat and had his head turned completely around over the back seat and when he turned around he applied his brakes and swung his car but it was too late to avoid the collision.

Elson Williams and Maltona Jones, witnesses called by the defendant, testified that the taxicab was traveling 25 miles per hour, and the driver could have stopped in 25 or 30 feet; that plaintiff's car when about 15 feet away suddenly made a left turn in front of the...