Thomas v. Wells

• Decision Date: 04 October 1927
• Docket Number: No. 19858.,19858.
• Citation: 299 S.W. 72
• Court: Missouri Court of Appeals
• Parties: THOMAS v. WELLS.

299 S.W. 72

THOMAS v. WELLS.

No. 19858.

St. Louis Court of Appeals, Missouri.

October 4, 1927.

Rehearing Denied October 25, 1927.

Appeal from St. Louis Circuit Court; Barry Rosskopf, Judge.

"Not to be officially published."

Action by John Thomas against Rolla Wells, receiver of the United Railways Company of St. Louis, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Thomas E. Francis, John F. Evans, and Curlee, Nortoni & Teesdale, all of St. Louis, for appellant.

J. M. Feigenbaum and Leon M. Feigenbaum, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on June 21, 1921, when he was struck by one of defendant's street cars at the intersection of Twelfth and Olive streets in the city of St. Louis. The verdict of the jury was in favor of plaintiff in the sum of $1,500, and from the judgment rendered thereon, defendant, after an unavailing motion for a new trial, has perfected this appeal.

The negligence pleaded and submitted for the consideration of the jury was the alleged violation by defendant of the ten-mile speed and the vigilant watch ordinances of the city of St. Louis.

The answer was a general denial, coupled with a plea of contributory negligence.

The reply was in conventional form.

Twelfth street is 129, and Olive street 36, feet in width at the point of their intersection. On Olive street defendant maintains double car tracks, the south track being for east-bound, and the north for west-bound, street cars. Prom the south curb of Olive street to the south rail of the east-bound track is a distance of 10 feet 7 inches. The width of the track itself from rail to rail is 4 feet 8 inches.

Plaintiff was 63 years of age at the time of the accident in question, and was injured in an attempt to cross Olive street from the southeast to the northeast corner at its intersection with Twelfth street. He testified that he started across the street "kind of angling"; that is, with his face turned slightly towards the east, watching a west-bound automobile approaching from that direction. When he reached a point in very close proximity to the south rail of the east-bound track, he was struck by the fender of an east-bound street car, owned and operated by defendant, and was knocked down. Plaintiff's own testimony was clear that, as he walked towards the track, he was not watching for an approaching street car from the west, but was looking only towards the automobile coming from the other direction; that he did not hear the sound of any bell or gong; and that he did not see the street car until it was right upon him. The accident occurred between 8 and 9 o'clock in the morning.

Plaintiff's own testimony was corroborated in most respects by that of one eyewitness, who testified that plaintiff attempted to cross the street in company with, and to the right of, a number of other people, and that, at the time he stepped off of the curbing, the east-bound street car which subsequently struck him was stopped on the west side of Twelfth street. By the time the pedestrians reached the south rail of the east-bound track, the street car started to move forward. Plaintiff had just crossed the east-bound track when the west-bound automobile came upon him, forcing him to step backwards at which time the east-bound street car had reached the center of Twelfth street, running at a speed of 10 miles an hour. Plaintiff never looked towards the on-coming street car, and was struck as he was in the act of stepping back off of the track. Meanwhile the street car had increased its speed, and at the moment of the collision was running at a rate of 15 or 20 miles an hour.

We have concluded that it will be necessary for us to consider but one of the several points raised by learned counsel for defendant; namely, that it was error for the court to give instruction No. 1 for plaintiff, thus submitting to the jury the issues of defendant's negligence for violation of the ten-mile speed ordinance and of plaintiff's contributory negligence. It is argued that plaintiff's own evidence disclosed that he...