Tocco v. C. D. Kenny Co.

• Decision Date: 03 March 1925
• Docket Number: No. 18904.,18904.
• Citation: 269 S.W. 928
• Parties: TOCCO v. C. D. KENNY CO.
• Court: Missouri Court of Appeals

269 S.W. 928

TOCCO v. C. D. KENNY CO.

No. 18904.

St. Louis Court of Appeals. Missouri.

March 3, 1925.

Rehearing Denied March 31, 1925.

Appeal from St. Louis Circuit Court ; Robert W. Hall, Judge.

"Not to be officially published."

Action by Josephine Tocco, a minor, by Vito Tocco, her next friend, against the C. D. Kenny Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John T. Sluggett, Jr., and Edward J. Houlihan, both of St. Louis, for appellant. McMahon & Berthold, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries sustained by the plaintiff on the 5th day of March, 1923, about 3:30 o'clock in the afternoon, when she was struck by defendant's automobile truck at the intersection of Wash and Ninth streets, in the city of St. Louis. Wash street runs east and west; Ninth street runs north and south. There is a single street car track running along the center of each of these streets. Ninth street is about 28 feet wide from curb to curb. At the time of her injury plaintiff was about 7 years old. She was walking eastwardly on the sidewalk on the north side of Wash street, and, on arriving at the intersection, attempted to cross from the west to the east side of Ninth street over or alongside the regular pedestrian crossing on the north side of Wash street. The automobile truck in charge of the defendant's driver approached the crossing from the south on Wash street, running on the rails of the street car track, and struck the plaintiff at a point near the west rail of the track. The streets were paved with cobblestones.

The amended petition upon which the cause was tried pleads section 1266 of the ordinances of the city of St. Louis, which provides that a motor vehicle traveling on a public street, except when passing a vehicle ahead, shall keep as near the right-hand curb as possible; also section 1277, which provides that drivers of motor vehicles of all kinds shall, when aproaching a crossing or in rounding a curve or corner on a public street, sound their signals in such a way as to give a warning to other vehicles and to. pedestrians of their approach; and also section 1301, which provides that no automobiles or motor vehicles shall be moved or propelled along, over or upon any public street, avenue or boulevard at a greater rate of speed than 10 miles per hour ; and charges the violation of said sections in that the defendant's driver, in operating its truck northwardly on Ninth street and across Wash street, negligently failed to drive the same as near the right-hand curb as possible, in that the defendant's driver in crossing over Wash street negligently failed to sound a signal warning of the approach of said truck, and in that the defendant's driver in operating said truck northwardly on Ninth street and across Wash street negligently operated said truck across said Wash street at a rate of speed greater than 10 miles per hour, and charges further that the defendant's driver in operating said truck northward on Ninth street saw, or by the exercise of the highest degree of care could have seen plaintiff crossing Ninth street from the west to the east side thereof, and at or near the north pedestrian crossing of Wash street, and saw, or by the exercise of the highest degree of care could have seen, that plaintiff was in a position of imminent peril and danger of being struck by said truck, in time, thereafter, with the brakes and appliances at hand on said truck, to have stopped the truck, or to have diminished its speed, or to have changed or diverted its course, and thereby to have avoided striking and injuring plaintiff, but that said driver negligently failed so to do. The answer is a general denial.

There was evidence for plaintiff tending to show that the plaintiff was walking slowly over the north pedestrian crossing of Wash street or along the north side of said crossing, and within about 3 feet thereof, at the time she was struck by the defendant's automobile truck ; that the truck was traveling at a speed of 15 to 20 miles per hour; that no signal warning whatever was sounded as the truck approached the crossing; that when the plaintiff left the curb on the west side of Ninth street and had advanced about three feet eastward into the street, the truck was about 50 to 60 feet to the south of her, moving northward ; that when the truck had approached to about the intersection of the street car tracks in the center of Wash street, the plaintiff had advanced to a point within about 2 feet of the west rail of the track on Ninth street ; that when the truck had approached to within about 5 feet of the plaintiff, it swung eastward as though the driver were attempting to avoid striking the plaintiff ; that the left front fender of the truck struck the plaintiff and knocked her down upon the pavement near the west rail of the track; that she got up and walked, or, as the witness expressed it, "limped," to the curb on the west side of Ninth street and fell on the curb unconscious; that the defendant's driver picked her up and carried her to a. neighboring grocery store where medical aid was administered; that she sustained an impacted fracture of the right ankle and serious injuries to the back and head ; that after the truck struck plaintiff it ran 25 feet before it was stopped ; that there was no car, vehicle, or traffic on the streets at the time of the accident other than defendant's truck.

The driver of the truck, testifying on behalf of the defendant, said that, as he approached the intersection of Wash and Ninth streets, he was running at a speed of about 12 miles per hour; that he stopped the truck on the south side of Wash street and sounded his horn and thereupon drove the truck northward at a speed of about 5 miles per hour until after he had passed the point where it is said the plaintiff was struck; that he could have stopped the truck in a distance of 1 foot ; that he did not see the plaintiff in the street at all ; that he first saw her lying on the curb ; that he heard her scream, and that this attracted his attention; that he thereupon stopped the truck, went to the curb, picked her up, and carried her to the grocery store; that the truck he was driving at the time was a White 2-ton truck ; that he was driving the truck straddle the east rail of the street car track ; that he did not swerve or turn the truck to the east ; that there was no other truck, vehicle, or traffic on the street at the time; that there was nothing to obstruct his view as he approached the scene of the accident.

There was also some evidence tending to show that the plaintiff was crossing Ninth street 25 to 30 feet north of the north curb line of Wash street at the time she was struck. The cause was tried to a jury. There was a verdict for the plaintiff for the sum of $1,500, and judgment was given accordingly. The defendant appeals.

At the trial there was a controversy concerning the extent and character of the injury to plaintiff's ankle sustained in the accident. Dr. R. N. Tyzzer, who treated plaintiff's injuries immediately after the accident, insisted that there was an impacted fracture of the right ankle. He diagnosed the fracture, however, without the assistance of an X-ray picture. Dr. S. A. Levy, an expert on X-ray pictures, insisted that an X-ray picture taken by him 9 months after the accident showed that there was no fracture of the ankle. During his examination in chief, the following occurred:

"Q. Now, Doctor, I will ask you to state, as a physician, and from knowledge you have gained as a practicing physician and specialist in X-ray work, in cases where a physician finds or diagnoses a fracture of the astragalus in a child 7 years of age, is it customary or not to have an X-ray picture taken? A. Absolutely; yes.

"Q. That is the approved practice in the city of St. Louis? A. Yes, sir. I might add it is the only safe practice anywhere.

"The Court: Q. Of course, they do not have those opportunities in country towns, doctor? A. No; no; they do not, your honor.

"The Court: Q. It is on the same principle that it is customary and convenient to have an automobile, isn't it? A. No."

The defendant insists that the propounding of these questions by the court amounted to an improper and prejudicial comment upon the witness' testimony, and assigns as reversible error the overruling of its motion to discharge the jury on account of the propounding of such questions. The questions are unfortunately phrased, and might have been regarded by the jury as an expression of an opinion by the court that the witness' testimony relating to the necessity for an X-ray picture in diagnosing a fracture should be accepted with some qualification. The witness' previous answers to questions of counsel tended to convey the impression that the witness regarded the X-ray picture as an absolute necessity in diagnosing a fracture, and in determining whether or not a fracture exists. The court, in asking the questions referred to, was evidently actuated by a desire to get at the truth. The witness' subsequent testimony shows that he had in his previous answers, unintentionally doubtless, somewhat exaggerated the importance of the X-ray picture in diagnosing a fracture, for he conceded that a fracture may be diagnosed and determined without the aid of an X-ray picture, and that the picture is indispensable only in ascertaining the precise nature and extent of the fracture to the end that proper treatment may be administered. Upon objection being made by counsel to the questions propounded, the court immediately withdrew the same and gave the jury to understand that the questions were casual and should be disregarded. The learned trial judge, with the jury under his observation, was in a better position than this court to appraise the effect of the incident upon the jury, and he approved their verdict. The testimony involved in the incident related solely to the measure...