Ternetz v. St. Louis Lime & Cement Co.

• Decision Date: 22 May 1923
• Docket Number: No. 23143.,23143.
• Citation: 252 S.W. 65
• Court: Missouri Supreme Court
• Parties: TERNETZ v. ST. LOUIS LIME & CEMENT CO.

252 S.W. 65

TERNETZ v. ST. LOUIS LIME & CEMENT CO.

No. 23143.

Supreme Court of Missouri, in Banc.

May 22, 1923.

Appeal from St. Louis Circuit Court; Benjamin Klene, Judge.

Action by Frank Ternetz against the St. Louis Lime & Cement Company judgment for plaintiff, and defendant appeals. Affirmed.

Everett Paul Griffin, of St. Louis, for appellant.

Kelley, Starke & Moser, of St. Louis, for respondent.

SMALL, C.

I. Appeal from the circuit court of the city of St. Louis.

Personal injury case. Plaintiff was run over, September 2, 1920, by defendant's automobile truck at the intersection of Vandeventer avenue with Choteau and Manchester avenues in said city. Vandeventer avenue runs north and south, and Choteau and Manchester avenues run northeasterly and southwesterly and are continuations of the same street; Choteau avenue running northeasterly and Manchester avenue running southwesterly from Vandeventer avenue.

The petition charged negligence in several respects in operating said automobile by the driver.

The answer, besides a general denial, contained a plea of contributory negligence.

The plaintiff obtained a verdict for $20,000. The court required a remittitur of $5,000. Judgment was rendered for $15,000 in favor of the plaintiff and against the defendant, from which defendant duly appealed to this court.

The following colloquy took place between plaintiff's counsel and one of the jurors on voir dire examination:

"Q. Now, the court will tell you in its instructions that the burden of proof is on the plaintiff to prove his case by a preponderance or the greater weight of the credible or believable testimony. Will you require the plaintiff to go any further than that? A. I hardly think so." Would not hesitate to give plaintiff a verdict, if evidence showed if happened through the fault and negligence of the defendant. "I would have to know that it wasn't the man's fault, that is, that it was the company's fault, and that the man was not at fault. Q. In other words, the evidence would have to, if I understand you correctly, convince you beyond a reasonable doubt that the defendant was guilty of negligence, before you would return a verdict? A. Yes, sir. Q. Now, Mr. Juror, you have some prejudice, haven't you, against these cases, that would take evidence to remove, haven't you? A. Yes, sir." It would have to be shown clearly. "Q. Beyond a reasonable doubt, is that right?' A. I would have to see it." "Mr. Kelley: Now, your honor, 1: renew that challenge. The Court (addressing Mr. Griffin, defendant's counsel): If You want to ask him any questions, proceed." Mr. Griffin said he did not. Thereupon, the court sustained the challenge.

Plaintiff's counsel asked another juror:

"Q. If it is shown that the plaintiff was seriously and permanently injured by the defendant, will you hesitate about bringing in a verdict for the plaintiff which will fairly and adequately compensate him for those injuries?"

Defendant's counsel objected as follows:

"I object to those questions, because it is asking from the juror in advance a decision in this case on a matter that is to be tried by him later and without the juror having the opportunity of hearing the instructions and asking the juror to commit himself to what he is going to do in this case." Overruled and excepted to.

No answer from the juror.

Evidence for plaintiff:

Plaintiff himself testified, in substance:

That there were double street car tracks on both Vandeventer and Manchester-Choteau avenues, which crossed each other at the intersection of these streets. That plaintiff, who was a steam fitter about 40 years of age and 18 years' experience at his trade, left Swift & Co.'s Vandeventer avenue plant, where he was employed, about half past 3 in the afternoon of September 2, 1920. He had finished his day's work and was going home. He walked south on the east side of Vandeventer avenue, Intending to take the east-bound street car on Choteau avenue. He crossed over to the west side of Vandeventer to a news stand to buy a newspaper. This stand was on the west side of Vandeventer about 25 feet north of the north line of Manchester avenue. After buying a newspaper, he went south along the west side of Vandeventer until he reached the curb at the north side of Manchester, or the northwest corner of Vandeventer and Manchester. He then looked east and west, while he was still on the curb, to see if anything was coming. He then stepped off the curb 4 or 5 steps, and again looked east and west. He saw no automobile or truck at either time he looked. He was walking south in the regular path for pedestrians across Manchester-Choteau avenues on the west side of Vandeventer avenue. He looked to see if any car was coming, or if there was anything coming in the opposite direction to interfere with his crossing. He saw a street car coming about 200 feet or less away. The east-bound Manchester-Choteau avenue car, which he intended to take, ran on the south track. After he had walked 10 or 15 steps, after looking the second time, and was just stepping over the north rail of the west-bound track, he was struck by something, knocked unconscious, and remembered nothing after that, until he woke up late that night at the Barnes Hospital.

On cross-examination, he stated: That when he first looked east and west, while standing on the curb, he did not see anything. He looked east 50 or 00 feet or more, just back of Kirk's store building on the corner there. He looked west to see the street car about 200 feet Or probably less. The street car attracted his attention. That was the oar he was going to take. It was going east and coming from the west. His mind was on getting across the street. His attention was attracted to the car.: rust looked at it, yes. It was a Manchester car. Did not know whether there was anything to prevent him from seeing 600 feet away to the east. "You might, I never looked that far. I don't know if the viaduct would stop you from looking that far or not." No buildings there except on each side of the street. He looked to the end of Kirk's building, where-ever that is; probably could have seen further east than that. Did not think it necessary to look that far. "I just looked about to the end of the Kirk's store, and that gave me plenty of clearance, and there was nothing in sight" Did not notice an automobile or sprinkling wagon at the curb. He saw nothing coming from either direction in the street except the street car from the west. There was not a thing coming in the street from the east that he could see. After he had taken 4 or 5 steps from the curb, he again looked east and west, and saw nothing but the street car approaching from the west. At that time, he first looked east again about as far as Kirk's store, and then looked west and saw the car coming from the west slacking up. Kept looking at the car, and where he was walking south. His eyes were looking forward ahead, and on the ground, too. He did not look east any more. Walked about 10 or 15 steps when he was struck. The east-bound car was then approaching him. He walked in an ordinary way to get on the front end of the car. "You get on the front end and pay as you get off." He was intending to cross over and get on the front end of the car, but did not get that far. He might have heard a truck approach, but did net remember it. He would not say he did. Does not remember hearing it. He passed that corner every day that he worked (at Swift's). It was a nice clear day when the accident occurred; broad daylight about half past 3.

The evidence of two witnesses for plaintiff tended to prove that when defendant's truck was 200 feet away east of Yandeventer avenue on Choteau avenue, it was near the north rail of the west, bound track going fast. It kept coming and hit plaintiff and ran over him. Plaintiff was right between the rails of the west track when struck on the street crossing. Defendant's truck did not, and the driver made no effort, to slow down or slacken his' speed until after it struck the plaintiff. It then ran about 40 feet before it stopped, striking another machine that was driving west around the corner. The truck which struck the plaintiff had defendant's name on the side. It was going between 20 and 25 miles an hour, when it approached and struck the plaintiff. These witnesses were watching the truck as it approached, but heard no signal or warning of any kind, nor did they see any given the plaintiff by the driver. The truck swerved both ways just before it hit the plaintiff. No obstructions between the truck and the plaintiff. The crossing was a busy crossing.

Defendant introduced evidence which tended to show that the driver of defendant's truck was not guilty of negligence in regard to any of the matters charged in the petition or testified to by plaintiff's witnesses, and also tending to prove that plaintiff was guilty of contributory negligence.

Evidence as to plaintiff's injuries:

Plaintiff testified: The night of his injury, September 2, 1920, he was taken in an unconscious condition to the Barnes Hospital, where he remained until September 20th. The hospital doctors treated him. They put him in a frame in a cot; it was an iron, oblong frame with canvas and ropes. He was in this frame until a week before he was discharged. He was then put in a stiff plaster cast, which extended all around his body from his hips to his neck. He was in bed in this cast. While in this frame, he was not permitted to move, even to go to the toilet; to answer a call of nature they pulled him up and put a bedpan underneath the frame; this was continued as long as he was in the frame. At the hospital, they sewed up his head, where it was cut in two places right over his eye, and in two places on the back of his head. The doctors at the hospital also gave him medicine for his bowels. He was in pain all the time he was there; pain continued to bother him at the trial. They took him home from...