Stewart v. Rhodes-Burford Furniture Co.

• Decision Date: 04 March 1924
• Docket Number: No. 18379.,18379.
• Citation: Stewart v. Rhodes-Burford Furniture Co., 259 S.W. 875 (Mo. App. 1924)
• Parties: STEWART v. RHODES-BURFORD FURNITURE CO.
• Court: Missouri Court of Appeals

259 S.W. 875

STEWART v. RHODES-BURFORD FURNITURE CO.

No. 18379.

St. Louis Court of Appeals, Missouri.

March 4, 1924.

Appeal from St. Louis Circuit Court; Moses Hartmann, Judge.

"Not to be officially published."

Action by Junius Stewart against the Rhodes-Burford Furniture Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Fordyce, Holliday & White and Bennett C. Clark, all of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff by reason of being run upon by a motor truck of the defendant corporation, and charged to have been caused by defendant's negligence. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $3,000, and the defendant has brought the case here by appeal.

One assignment of negligence in the petition invokes the humanitarian or last chance doctrine petition contains other charges of negligence, but, as the case reaches us, they need not be noticed. The answer is a general denial, coupled with a plea of contributory negligence.

The casualty occurred at or about the intersection of Fourteenth and ()Tenon streets, public streets in the city of St. Louis. O'Fallon street extends east and west, and is intersected by Fourteenth street, extending north and south. On November 18, 1921, between 5:30 and 6 p. m., plaintiff, while attempting to cross from the south side to the north side of O'Fallon street, along the east side of Fourteenth street, was struck and run upon by defendant's motor truck, driven by a servant of defendant, which was proceeding east on the south side of O'Fallon street, whereby plaintiff received serious injuries. It appears that in the center of O'Fallon street there was a single street car track, upon which west-bound street cars were operated, and that the distance from the south curb of the street to the south rail of this track was approximately 15 feet.

Plaintiff, an elderly man, testified that he proceeded north on the sidewalk on the east side of Fourteenth street until he reached the south curb of O'Fallon street, when he observed a west-bound street car, with a trailer, on O'Fallon street, which stopped with the front end thereof about opposite the east curb of Fourteenth street; that he stepped from the sidewalk, into O'Fallon street, and made a step or two north, and stopped and waited until these cars had passed beyond the crossing. He estimated that he stood at this point "but a step or two" from the south curb of O'Fallon street, and 3 or 4 feet east of the east curb of Fourteenth street, for perhaps a minute and a half; and he said that after the cars had passed he started to go forward to cross the street, when he was struck and knocked down by defendant's automobile and rendered unconscious. When asked how far he walked north from the place where he had been standing in the street, before he was struck by the truck, he said:

"I couldn't just say how far. That I cannot say—how far I had walked. * * * Just as soon as the car was out of the way I started to cross there, and that is the last I know."

He referred to an electric light at the southeast corner of this intersection, and said that though it was dark at the time and raining, the streets at and about this crossing were lighted by the street lights. And he testified that he heard no horn sounded, or other warning given by the driver of defendant's truck.

On cross-examination plaintiff said that the street lights gave "sufficient light at that point." Being questioned further as to how far he went north, from the point where he stopped and stood in the street, prior to being struck by the truck, he repeatedly stated that he was unable to say. He was then asked:

"Was the impression that you gained from it that you had just started, or that you had proceeded some little distance?"

And he replied:

"The impression to me was that I started quite a little bit, yes; but that I couldn't say for sure."

And he said that he did not see the truck before it struck him.

One Grey, the driver of defendant's truck, but who was not in defendant's employ at the time of the trial, was called as a witness for plaintiff. He testified that he was driving defendant's truck, which was about 25 feet in length, east on the south side of O'Fallon street, and that when he reached the west side of Fourteenth street he brought the truck to a full stop; that he then proceeded forward, at a speed of about 4 to 5 miles an hour, and continued at about that speed until he struck plaintiff. He said that he did not see plaintiff until the front end ,of the truck was about 1 foot from him, at which time plaintiff was "standing" about 3 feet from the south curb of O'Fallon street, and about 25 feet east of the east curb of Fourteenth street. Later, when asked if plaintiff was standing or moving when he first saw him, the witness said: "I couldn't say." And he said that upon seeing plaintiff he stopped the truck in about 5 feet.

On cross-examination, Grey said that when he struck plaintiff he was driving within 2 or 3 feet of the south curb of O'Fallon street, and that when he first saw plaintiff the latter was about a foot in front of the bumper, "right at the right front wheel," and was "around 3½ or 4 feet from the south curb of O'Fallon street," and he said that he sounded an exhaust whistle on the truck in approaching Fourteenth street, and looked ahead, but saw no one in the street.

A police officer, who arrived upon the scene shortly after the happening of the casualty, testified that the truck was then standing about 2 or 3 feet east of the south curb of O'Fallon street, about one-half thereof being east of the east building line of Fourteenth street. This testimony was admitted after. Grey, upon being recalled, testified that the truck had not been moved in the meantime.

Being again recalled, Grey, testifying on cross-examination as to the location of the electric light at the southeast corner of this street intersection,...