Thompson v. Smith

• Decision Date: 08 June 1923
• Docket Number: No. 23141.,23141.
• Citation: 253 S.W. 1023
• Parties: THOMPSON v. SMITH.
• Court: Missouri Supreme Court

253 S.W. 1023

THOMPSON v. SMITH.

No. 23141.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

Rehearing Denied July 31, 1923.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Action by Ruth Thompson against Jacob Smith. Judgment for plaintiff, and defendant appeals. Affirmed subject to remittitur; otherwise reversed and remanded.

M. U. Hayden and John P. Griffin, both of St. Louis, for appellant.

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

BROWN, C.

This is a suit to recover damages, laid in the petition at $30,000, for personal injuries alleged to have been inflicted by an automobile owned and operated by the defendant, being driven against a motorcycle upon which the plaintiff was riding at the time, at or near the corner of Delmar boulevard and Skinker road, public streets in the city of St. Louis; the former extending east and west, and the latter extending into but not across it from the south. The petition states, in substance that on the 6th day of September, 1920, the plaintiff was riding upon a motorcycle being driven in an easterly direction on Delmar boulevard on the south side of said street; that when they reached the point where Skinker road runs into Delmar boulevard they were struck by defendant's automobile being driven in a westerly direction upon Delmar boulevard, and which had suddenly turned In a southerly direction in Skinker road; and that as a result thereof she received the serious and permanent injuries complained of, including the loss of her left leg below the knee, and which had compelled, and would in the future compel, her to incur great expense, and had greatly impaired her earning capacity. It then charged that said injuries were caused by the negligence and carelessness of defendant in the operation of said automobile in the following particulars:

"First. That the driver of said automobile suddenly turned from a westernly direction on Delmar boulevard at the intersection of Skinker road to a southerly direction in Skinker road onto and against the motorcycle on which plaintiff was riding at a time when the motorcycle was driving in an easterly direction on Delmar boulevard at the point where Skinker road runs into or intersects Delmar boulevard, thereby causing plaintiff's injuries.

"Second. That the driver of geld automobile turned from a westerly direction on Delmar boulevard into a southerly direction on Skinker road at the aforesaid intersection and without warning to plaintiff or the driver of the motorcycle; that said automobile intended to turn from a west to a southerly direction into Skinker road, and at a time when the automobile was being run at such a high and negligent rate of speed; that the plaintiff or the driver of the motorcycle could not, by the exercise of ordinary care, avoid the collision, thereby causing plaintiff's injuries.

"Third. That at the time a street car was passing said intersection in the center of the street and the driver of the automobile suddenly passed said car and turned around the west end of the car from a westerly direction on Delmar boulevard into a southerly direction on Skinker road and immediately onto the motorcycle on which plaintiff was riding, and without any warning to plaintiff or the driver of the motorcycle, thereby causing plaintiff's injuries."

The cause was tried upon an amended answer, which in addition to a general denial sets up, in substance, the following defenses: That at the time plaintiff received her injuries she was riding the motorcycle no the companion of one Walters, the driver, for their joint pleasure, for which reason it was her duty to be in, the exercise of ordinary care for her own safety, and that whatever injury she suffered on that occasion was the result of her own negligence contributing thereto in that she failed to exercise ordinary care to ascertain the approach of defendant's automobile and advise Walters thereof when she saw, or by the exercise of ordinary care might have seen, that It was approaching the intersection of Delmar boulevard and Skinker road in such a position that unless the course of the motorcycle should be changed or its speed slackened it was in great danger of being struck by the automobile, and that she carelessly and negligently failed to either request or suggest to Walters to change or to reduce the speed of the motorcycle or to so operate it as to prevent it from being struck by the automobile.

That there was then in full force and effect in said city an ordinance providing as follows: "A vehicle, except when passing a vehicle ahead, shall keep as near the right curb as possible." That in approaching said street intersection Walters and plaintiff were, in violation of said ordinance, operating their motorcycle near the center of said street; that plaintiff acquiesced in said violation, which carelessness and negligence on her part directly contributed to her injury.

That the motorcycle was classified under the laws of this state as a motor vehicle, and it was the duty of those operating it to drive it in a careful and prudent manner, and at a rate of speed such as to not endanger the property of another or the life or limb of any person, and that at the time said motorcycle was being operated along Delmar boulevard in a careless and imprudent manner and at a rate of speed which endangered the defendant's automobile, as well as the lives and limbs of its occupants and the occupants of the automobile, to wit, a rate of speed in excess of 15 miles per hour; "that at the time said motorcycle approached the intersection of Delmar boulevard and Skinker road in said city, both Walters and plaintiff either saw, or by the exercise of ordinary care would have seen, the automobile of defendant, after it turned southwardly, to have by the exercise of ordinary care, and with the means at hand, and consistent with their safety, stopped or slackened the speed of said motorcycle, or to have so changed its course as to prevent colliding with or being struck by defendant's automobile, but that, on the contrary, plaintiff carelessly and negligently permitted said Walters to operate said motorcycle without stopping or slackening its speed, or changing its course, after she saw, or by the exercise of ordinary care could have seen, defendant's automobile in a position in which said motorcycle was likely to collide with or be struck by said automobile; and that plaintiff carelessly and negligently failed to suggest or request that said Walters exercise ordinary care by stopping or slackening the speed of said motorcycle or change its course so as to avoid colliding with or being struck by said automobile—all of which carelessness and negligence on the part of plaintiff directly contributed to the injuries sustained by her on said occasion."

The plaintiff replied by general denial. The evidence, which will be more particularly noticed as it shall become necessary in the course of the opinion, tended to show that on the morning of September 6, 1920, the plaintiff, a young woman in the neighborhood of 19 years of age, was riding for pleasure in the company of one Walters upon a motorcycle driven by him, and that on their return at half past eleven or a little later in the evening, while passing eastwardly on the driveway at the south side of said street at its junction with Skinker road, entering it from the south at that point, their vehicle was struck by an automobile owned and driven by the defendant; plaintiff's leg was broken, and she was otherwise injured. A number of disinterested witnesses were standing upon the street at the time of the accident, and their testimony leaves little doubt of the manner in which it occurred.

At that point Delmar boulevard, important public street carrying much travel, together with a double track street railway, extended east and west through the city, the driveway between its tracks and the south curb of the street being about 6 feet wide. The width of the driveway north of the tracks is not stated in the evidence. An other street, called Skinker road, enters it at that point from the south, but does not cross it, the curb on the north side of Delmar being continuous at that point. The tracks of the two street railroads connect at this intersection.

At the time of the accident, four apparently disinterested witnesses were standing upon the sidewalk on the north side of Delmar boulevard waiting to be transferred to a Delmar avenue car to be taken home. These were ail practically within the distance occupied by the intersection of Skinker road. These witnesses saw the motorcycle, on which the plaintiff was riding behind her escort, coming east along the south side of Delmar boulevard between the curb and the south rail of the street railway track where It evidently belonged. Its speed is stated by them to have been moderate, or from 10 to 15 miles per hour, and it carried a light. At about the same time these witnesses saw the automobile approach Skinker road over the driveway north of the street railroad tracks, at a speed of 30 miles per hour, and at a point near the east line of Skinker road It curved south across the driveway upon which the motorcycle was running east, to a position between the railroad tracks on Skinker road where it collided with the motorcycle, which seems, from the testimony to have, in attempting to escape it, swerved south, across the south line of Delmar. The defendant does not claim to have sounded any warning of his intention to turn south on the Skinker road, and says that he did not see the motorcycle until it was within 7 or 8 feet of his car, which he immediately stopped. The impact threw the plaintiff 10 or 12 feet through the air over the bumper of his car, breaking her leg and inflicting other injuries, but the defendant testifies that as she lay in that condition she told him, "I was stricken down, but I know it was not your fault." At the close of the evidence the...