Svehla v. Taxi Owners Ass'n.

• Decision Date: 06 January 1942
• Docket Number: No. 25825.,25825.
• Parties: SVEHLA v. TAXI OWNERS ASS'N, Inc., et al.
• Court: Missouri Court of Appeals

157 S.W.2d 225

SVEHLA v. TAXI OWNERS ASS'N, Inc., et al.

No. 25825.

St. Louis Court of Appeals. Missouri.

January 6, 1942.

Appeal from St. Louis Circuit Court; William K. Koerner, Judge.

"Not to be reported in State Reports."

Suit by James Svehla against the Taxi Owners Association, Incorporated, and others, for injuries suffered in automobile accident. From a judgment on a verdict for plaintiff against them, defendants Laura Schnarr, also known as Lola Schnarr, and another, appeal.

Reversed and remanded.

Max Sigoloff, of St. Louis, for appellants.

Paul H. Koenig and H. Clair McGinnis, both of St. Louis, for respondent.

HUGHES, Presiding Judge.

Plaintiff sues to recover damages for injuries sustained on August 17, 1939, as the result of being struck by an automobile belonging to defendant Laura Schnarr and being operated at the time of the accident by defendant Hugo Sonnenschein. The defendant Taxi Owners Association went out of the case by an involuntary non-suit at the close of plaintiff's evidence. The trial proceeded against the defendants Laura Schnarr and Hugo Sonnenschein, resulting in a verdict and judgment in plaintiff's favor for $6,500. This appeal follows.

The accident occurred at about 11 o'clock at night. It was raining and plaintiff was standing under a canopy which extended across the sidewalk on the east side of Twelfth Street between Locust Street and St. Charles Street, waiting for a street car. The taxicab operated by Sonnenschein drove up and parked alongside the sidewalk and facing north; Sonnenschein got out and stood under the canopy with plaintiff, and they talked about the weather. After two or three minutes plaintiff heard a street car approaching and stepped out in front of the canopy and walked over to the center of Twelfth Street to a safety zone. The safety zone extended for the whole distance of the city block between Locust Street and St. Charles Street and parallel with the street car tracks on Twelfth Street, and was marked by a painted stripe on the surface of the street. Sonnenschein received a call for the taxicab, which to reach he would be required to go south on Twelfth Street; in proceeding to do this he drove the taxicab to make what is commonly called a "U" turn in order to cross through or over the safety zone and proceed south on Twelfth Street. As plaintiff stood in the safety zone with his back to the direction from which the taxicab was approaching, the taxicab struck him, striking his left artificial leg. Plaintiff was thrown upwards and came down in a twisting position, his left hip, back and face striking the pavement. With some assistance plaintiff got up and got in the taxicab and was taken to the City Hospital where he was examined by Dr. R. V. Alpheidt, who found no appreciable injury and discharged him in the course of an hour, but with directions to see his family physician. From the City Hospital plaintiff was taken to the police station in order to make a report of the accident, and from there was taken to his home. The following morning his family doctor, Dr. Victor L. Gould, was called and came to plaintiff's home. Dr. Gould testified at great length to his findings as to plaintiff's injuries, among which he said there was definite evidence that plaintiff was suffering from a traumatic appendicitis, and plaintiff was taken to Faith Hospital where he remained until August 28, when he was allowed to go home for about ten days, and he then returned to the hospital and his appendix was removed. After about twelve to fourteen days he returned to his home.

Without going into minute detail, plaintiff's evidence was to the effect that his artificial limb was broken; the strap securing the limb to his body was broken and the eyelets were pulled out; that the artificial limb was driven against his stomach or groin. That when he was picked up he was dazed and shook up, shocked and highly nervous; had a bleeding abrasion right under his eye on the cheek bone; an abrasion on the back of his hand; a blister on his finger and his elbow skinned and bleeding and irritated, and a burning sensation in his stomach. The next morning he was suffering from a severe headache and his abdominal region was extremely painful; the abrasions were sore and swollen; that the back of his head and his shoulder were very painful, and his back was in constant pain; that afterwards he passed blood through his bowels and suffered from constipation. The abrasions had healed at the time of the trial, but he still had headaches although not as constantly as at first; that he had headaches prior to the accident but not nearly so severe nor as often or extended. That he was away from his work until October 2nd. That prior to the accident his health was good with the exception of the loss of his leg.

Other facts necessary for a determination of the case will be stated in the course of the opinion.

Appellant challenges plaintiff's instruction No. 1. This instruction informed the jury that if they believed from the evidence that while plaintiff was standing in a safety zone on Twelfth Street a taxicab driven by defendant Sonnenschein made a "U" turn on Twelfth Street and ran into and struck and injured plaintiff, and that Sonnenschein was in the employ of Laura Schnarr, and was driving the taxicab in the course of his employment, the verdict should be in favor of plaintiff.

We see no criticism of the instruction which would justify a reversal. The evidence was uncontradicted that plaintiff was in a safety zone when struck by the taxicab. It would make no difference whether the taxicab was making a "U" turn or whether it was proceeding straight ahead, it was negligence per se for it to proceed into the safety zone and strike plaintiff. Consequently the failure of the instruction to require a finding that defendant's act in driving into the safety zone was negligent is unimportant. Under the pleadings and evidence in the case it was negligence per se. Benoist v. Driveaway Co. of Missouri, Mo.App., 122 S.W.2d 86; Klohr v. Edwards, Mo.App., 94 S.W.2d 99; Robinson v. Mayer, Mo.App., 94 S.W. 2d 1067; Benzel v. Anishanzlin, Mo.App., 297 S.W. 180; Myers v. Nissenbaum, Mo.App., 6 S.W.2d 993.

Among other charges of negligence in the petition was the following:

"That the operator and driver of the said automobile at the time and place aforesaid, drove the said automobile over and through a safety zone in which the plaintiff was then and there standing, in direct violation of Subsection A, Section 6, of Ordinance 38232 of the Revised Code of the City of St. Louis, reading as follows:

"`It shall be unlawful for the operator of a vehicle at any time to drive the same over or through a safety zone as defined in this ordinance,' and that a safety zone as herein referred to is described in Section 1 of Ordinance 38232 of the Revised Code of the City of St. Louis, as follows:

"`The area or space officially set apart within a roadway for the exclusive use of pedestrains and which is protected or is so marked or indicated by adequate signs as to be plainly visible at all times while set apart as a safety zone.'"

The answer was a general denial.

These Ordinances were introduced in evidence, and plaintiff's instruction No. 1 was based on the violation of these safety zone ordinances.

The petition also alleged negligence in that the driver of the automobile (taxicab) turned his automobile in the opposite direction on Twelfth Street...