Sterr v. Wells

• Decision Date: 18 June 1925
• Docket Number: No. 18788.,18788.
• Citation: 273 S.W. 1092
• Parties: STERR v. WELLS.
• Court: Missouri Court of Appeals

273 S.W. 1092

STERR v. WELLS.

No. 18788.

St. Louis Court of Appeals. Missouri.

June 18, 1925.

Rehearing Denied July 7, 1925.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Elizabeth Sterr against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Austin E. Park, all of St. Louis, for appellant.

Verne Lacy and J. J. Milligan, both of St. Louis, for respondent.

DAVIS, C.

This is an action for damages for alleged personal injuries, suffered by plaintiff in a collision with a street car operated by defendant, who appeals from the judgment entered on the verdict for $3,000 returned by the jury in favor of plaintiff.

Plaintiff's evidence tends to show that the collision occurred at the intersection of Kingshighway, a public street, and the Hodiamont line right of way, in the city of St. Louis; that plaintiff was walking northwardly in an ordinary fashion along the east side of Kingshighway, which runs north and south, and had proceeded onto the east-bound track of defendant, when she was struck by a street car operated by defendant going east, and while she was crossing the tracks along the continuation of the sidewalk.

Plaintiff's witness Peters testified, in substance, that he was engaged in the drug business on the southeast corner of Kingshighway and the Hodiamont tracks; that an arc light was placed in front of the drug store, extending about 2 feet from the building, and illuminating the entire front and the car track to some extent; that he noticed the car which struck plaintiff on the west side of Kingshighway, standing still; that plaintiff was walking north on Kingshighway, and he saw the car approaching as she started to cross the street car tracks; that plaintiff tried to get out of the way of the street car— she jumped when she saw the car approaching, but did not quite make it; that the north side of the front part of the car struck her, the car running 10 or 15 feet before it stopped; that she was lying in a ditch between the east and west bound tracks; that just before the car struck her the bell was rung; that when they rang the bell she tried to get out of the way by jumping; that there was no headlight on the car, but the interior of the car was lighted; that plaintiff was something like 15 or 20 feet from the tracks when witness first saw her walking northwardly in an ordinary fashion; that the car had proceeded about half way across Kingshighway when witness saw it the second time; that plaintiff was in the middle of the east-bound car track when she was struck, thereupon jumping to the north, the north end of the car hitting her.

Plaintiff herself testified, in substance, that it was fairly light; it was dusk, but there seemed to be "a little light around there; that she noticed an east-bound street car stop on the west side of Kingshighway; that she was on the sidewalk when struck; that she did not hear any bell sounded or alarm given, and did not see any headlight, although the street car was illuminated interiorly; that the street car was stopped on the west side of Kingshighway, and that plaintiff, when she first saw this street car, was in front of the drug store, she would say 10 feet south of the east-bound track, but of course she did not know whether that was accurate or not; that the last she saw of the car was when it was stopped on the west side of the street, and the next time she saw it was after she was struck; that she saw the car only once before the accident, and that time she was about 10 feet south of the car track; that when she came to about 10 feet from the track she looked to her left and saw this street car, which was across Kingshighway, stopped at the regular place for stopping to take on and put off passengers; that she knew that the car only stops long enough at that point to take on and put off passengers, and did not expect that car to remain stationary at that point for any length of time; that to her knowledge it was stopped; that she did not notice passengers getting on or off; that she knew it was bound to cross the street; that she could not tell whether she was 10 feet away from the track when she first saw the car, or whether it was more or less, but to her knowledge it was about 10 feet; that she was walking at a moderate gait, and had plenty of time to cross in front of the car, but she did not look again; that she assumed and surely thought that she had plenty of time, by walking at the ordinary pace to get across in front of this car before it could get to the place where she was crossing; that she had not passed entirely over both of the east-bound car tracks; that she could not say whether she was right in the center, but to her knowledge she was right about the center of the east-bound track, and was not aware of the car's approach until it struck her.

"Q. Miss Sterr, this is right is it, you looked and saw the car on the other side of the street; you thought you had plenty of time to get in front of it, and, without looking at it again, you walked right over the track without increasing your speed, and thinking you had plenty of time to get by, taking the chance of getting by; is that correct? A. I thought I had time; yes, sir."

She further stated that she anticipated that she could keep on walking and without any difficulty go across safely; that the collision occurred about 8 o'clock in the evening.

Plaintiff's witness Anderson testified, in substance, that he saw plaintiff before the accident, walking north on the east side of Kingshighway, a little east of the center of the walk; that he first noticed the street car stop across the street, and the next time he noticed it it was about in the center of the street, and that plaintiff, about that time, was approximately in the center of the track; that when he first saw plaintiff she was about 10 feet south of the tracks.

Defendant's evidence tends to show that Kingshighway proper—that is, the roadway —is 60 feet 1 inch wide; that there is a 20-foot sidewalk on each side of the street, making it a 100-foot street; that from the north line of the drug store to the far side of the east-bound track is exactly 12 feet; that the width between the rails of the eastbound track is 4 feet 10 inches, and that from a point 10 feet south of the nearest rail to the farthest rail of the east-bound track would be 14 feet 10 inches; that the place marked "Car Stop" on the plat is 20 feet back from the west curb of Kingshighway; that from the regular car stop to the east curb of Kingshighway is 80 feet.

Defendant's witness Halloran testified, in substance, that he was motorman on the car which struck plaintiff, and had been a motorman on the Hodiamont line for about 5 years; that he was operating a regular car, pulling a trailer; that when he first saw plaintiff he was about in the middle of Kingshighway; that she was right at that drug store walking across the street; she walked over to about the middle of the west-bound track, and she wheeled around, either her shoulder or her head or something hit the second window in the front on the side of the car; that when he first saw her she was going to walk across the street there, across the tracks going north; that she was about 10 feet from the track; that he was in the middle of Kingshighway, saw her, and gave her the bell, and she was crossing the east-bound track, and had gotten entirely across that track; that she then circled around, turned right around real quick, and she bumped right in the side of the car about 4 or 5 feet from the front end of the car on the north side of the car; that the speed of the car was about 3 or 4 miles an hour, coming slowly across the street; that he stopped the car within about 3 feet; that he first noticed her when she was 5 or 6 feet from the south rail of the east-bound track, and the car was in the middle of the street at that time; that all that time he was ringing a bell very loudly.

Witness Doyle, a conductor for defendant, but riding as a passenger about the middle of the trailer, testified that he did not see the accident, but that they stopped to pick up passengers on the west side, started across, and he judged at just about the middle of the street the power was thrown on and he thought there was something in front of him the way it was turned on; that is what first attracted his attention, and then the car nearly stopped there and started to cross the street again, and just as they reached the opposite sidewalk the car was reversed, and then he knew there was something, they had stopped for some reason, and lie glanced through the window and saw this lady get up—that is, he did not see her get up, he saw her head there Where he was sitting, and she walked over on the sidewalk and stopped there, and he judged that was the cause of it.

Witness McKee, conductor on the trailer, testified, in substance: We started out; the motorman continuously rang the gong going across Kingshighway because machines were going both directions; that about the time the front end of the car began to enter the sidewalk on the east side of Kingshighway, the car slowed down, he did not know what for, then started again, stopping all of a sudden — a very sudden stop; that he then saw this lady walking to the north toward Kroeger's store, the motorman overtaking her about the edge of the sidewalk.

Witness Bennett, conductor on the motor car that struck plaintiff, testified, in substance, that the car stopped on the west side of Kingshighway to take on or unload passengers; that they were moving over Kingshighway at a moderate speed of 3 or 4 miles an hour, and, as they got very near across Kingshighway, he noticed a sudden jerk of the car, looked toward the front end, could see through the windows, and noticed a lady west of the west-bound tracks; she...