Stack v. General Baking Co.

• Citation: 223 S.W. 89,283 Mo. 396
• Decision Date: 04 June 1920
• Docket Number: No. 26800.,26800.
• Parties: STACK v. GENERAL BAKING CO. et al.
• Court: United States State Supreme Court of Missouri

223 S.W. 89

283 Mo. 396

STACK v. GENERAL BAKING CO. et al.

No. 26800.

Supreme Court of Missouri, Division No. 2.

June 4, 1920.

Rehearing Denied June 25, 1920.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by William Stack against the General Baking Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Watts, Gentry & Lee and Jones, Hocker, Sullivan & Angert, all of St. Louis, for appellants.

Frumberg & Russell, of St. Louis, for respondent.

WHITE, C.

The appeal is from a judgment against both defendants in the sum of $17,000 for personal injuries.

On the 15th day of May, 1915, between 3:30 and 4:00 o'clock a. m., plaintiff was driving his automobile north on Jefferson avenue in the city of St. Louis, when he collided with a wagon belonging to the baking company, driven by Keller, and was severely injured. The suit was to recover damages for the injuries thus sustained.

The negligence alleged as ground for recovery was a violation by the driver, Keller, of Ordinance No. 1327 of the City of St. Louis, regulating traffic upon the streets, as follows:

"A vehicle, except when passing a vehicle ahead, shall keep as near the right-hand curb as passible."

The plaintiff also sets out Ordinance No. 1349 of the Revised Code of St. Louis, which related to lights required on vehicles between sunset and sunrise.

The petition alleged a violation by defendants of that ordinance as a cause of the collision. The petition also in effect alleged a violation of the statute in that Keller drove his horse on the left side of the street and so caused the collision.

The joint answer of the defendants, after admitting that the defendant General Baking Company was a corporation organized and existing under the laws of New York and licensed to do business in Missouri, that at the times mentioned in the petition Keller was employed by the General Baking Company as driver of one of its wagons, and was at the date referred to in the petition in discharge of his duties as such servant of the General Baking Company, that the ordinances of the city of St. Louis were in force as set forth in plaintiff's petition; the collision, and that the plaintiff sustained injuries, denied all other allegations in the petition. The answer then alleged certain acts of contributory negligence which would bar recovery; That at the time of the collision the plaintiff was driving his automobile on the public streets of the city of St. Louis, in violation of the statute and of "the ordinances of the city of St. Louis, in that he was driving on the left side of said street when he should have been driving on the right side; that upon meeting the defendant's wagon on the street plaintiff, in violation of said statute and ordinances, negligently failed to reasonably turn to the right so as to pass said horse and wagon; that plaintiff was driving his automobile in violation of the statutes of Missouri and ordinances of the city, in that he failed to use the highest degree of care that a very careful person would use under similar circumstances to prevent injury; that the plaintiff at the time, in violation of said statute and ordinance, was driving at a reckless and negligent rate of speed, greater than ten miles per hour, which said acts of negligence contributed to and caused plaintiff to be injured.

As a further defense it was alleged that at the time referred to in the petition the plaintiff was operating a motor vehicle as a chauffeur for hire, and at that time had not filed his sworn statement in the office of the secretary of state describing himself and the motor vehicle which he was competent to operate; had not paid a registration fee of $1.50 to the secretary of state, so that he might be registered, and had not obtained his registration badge as provided and required by the act of 1911, and for that reason he could not recover.

The reply was a general denial.

The plaintiff testified that he was in the livery business with an automobile on the 14th day of May, 1915, and that he quit work about 3 o'clock in the morning of the 15th; that up to that time he had been hauling passengers, but then started home and took a young fellow, James Carroll, in his automobile. Another automobile driver, Williamson, started from the same station about the same time. Williamson started in advance, and the two drove northward on Jefferson avenue, which runs north and south. `On arriving at Lucas avenue, which runs east and west and crosses Jefferson avenue, they were delayed for a moment by a farm wagon which caused the plaintiff to stop. After the wagon passed he continued to drive northward. The next street running east and west, north of Lucas avenue, was Morgan street. Williamson continued northward in advance of plaintiff from 50 to 75 feet, as estimated by the different witnesses. At a point a little north of the middle of the block between Lucas and Morgan the collision occurred. There were two parallel car tracks in Jefferson avenue. The plaintiff testified that he was driving northward on the east track with Williamson directly in front of him, when Williamson suddenly turned to the right, and defendant's wagon loomed up in front of plaintiff, and was so close before he saw it that he was unable to avoid it. He turned to the left, the west, as quickly as possible to escape the collision. The driver of the wagon jumped off, and the horse and wagon also turned to the west. The two vehicles came forcibly together. The car was turned upside down, the wagon turned over on its side, and the horse's leg broken. The plaintiff was pinned beneath his automobile, which took fire, and he was very severely burned. He had traveled about two-thirds of the block between Lucas and Morgan when the collision occurred, and the horse and wagon were only about 10 feet from him when he saw them.

Williamson, witness for the plaintiff, testified substantially to the same facts in relation to the incident. He said he was driving about 50 feet in advance of Stack on the east side of the street. He suddenly met the wagon coming south on the east side of the street, and did not discover it until it was within 10 feet. He "swung sharply to the right to the curbstone and escaped contact with the wagon." Immediately afterwards he heard the crash of the plaintiff's collision. He stopped his car and went back. He swore the wagon was headed south on the car track on the east side of the street.

James Carroll, who was riding with the plaintiff, testified that at the time of the collision Stack was going north on the east side of the street, and met the wagon coming south on that side; that Stack turned as quickly as he could to the west, to the left, the wagon turned in the same direction, and the collision occurred.

On cross-examination Carroll admitted that he had been convicted of selling liquor contrary to law. Records of various convictions of James Carroll were offered in evidence by defendants and excluded.

Willett Davis, a colored woman living on the east side of the street near where the collision took place, testified that she saw the collision, and that plaintiff was driving north on the east side of the street.

One Louis Nau testified that he saw Keller driving the bread wagon and going south on the east side of Jefferson street.

Defendant introduced one Ezio Scappozzi, who was a waiter in a lunch room on the east side of Jefferson street near the point of collision. He testified that the wagon was being driven south on the west side of the street; that the plaintiff's automobile passed on the west side going about 45 miles an hour.

Keller, defendant, testified that at the time of the incident he was driving south on the west side of the street; that his left wheel was partly in the south-bound street car track and the right wheel near the curb; that plaintiff was driving on the west side of the street and was right on him in front of his horse when he first discovered the automobile.

Each side offered witnesses, policemen and others, who testified as to the position and location of the vehicles and horse after the collision and the character of the damage to each. The facts indicating how the collision occurred will be mentioned more fully in considering the defendants' demurrers to the evidence, which were filed at the close of the plaintiff's evidence and at the close of all the evidence. The demurrers were overruled.

I. Appellants do not deny that Keller was negligent if he was driving southward on the east side of the street. At the trial they endeavored to prove that the collision took place on the west side of the street; that the wagon was on the side where it should have been, and the automobile was on the wrong side.

The demurrers to the evidence were on several grounds. It is claimed that the physical facts show the plaintiff's evidence in explanation of the way the collision happened could not have been true because he must have been driving at a reckless speed. No ordinance is in the evidence fixing the speed limit, but the vehicles collided with such force as to turn the automobile upside down and turn the wagon over on its side, besides breaking the shaft of the wagon and breaking the horse's leg. It is argued that this shows conclusively the speed was dangerously and negligently high. Stack and Williamson both testified that they were going at from 8 to 10 miles an hour. The evidence showed the horse was in a trot. `If the automobile was going at the rate of 10 miles an hour, and the horse was going half that fast, which the evidence tended to show, then the combined speed was 15 miles an hour. This is not a slow rate by any means, and we are not prepared to say that vehicles, heading together nearly sidewise as these apparently did, would not be turned over by that impact or that it would not be sufficient to break a horse's leg and a shaft. The force of the blow did not depend entirely upon...