Unterlachner v. Wells

• Decision Date: 24 May 1927
• Docket Number: No. 29662.,29662.
• Citation: 296 S.W. 755
• Parties: UNTERLACHIMER v. WELLS.
• Court: Missouri Supreme Court

296 S.W. 755

UNTERLACHIMER v. WELLS.

No. 29662.

Supreme Court of Missouri, Division No. 1,

May 24, 1927.

Motion for Rehearing Denied June 25, 1927.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

Action by Alois Unterlachner against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Ernest A. Green, both of St. Louis, for appellant.

Douglass & Inman, of St. Louis, for respondent.

GRAVES, P. J.

This is a second appeal in this case. When first here (278 S. W. 79) the plaintiff appealed from a judgment against him. In that appeal, the only question was whether or not plaintiff was guilty of contributory negligence, as a matter of law. While there were four grounds of negligence charged against the defendant, the plaintiff submitted the case then, as he did in the second trial, upon a violation of the speed ordinance. On the first appeal we ruled (1) that the speed limit was 15 miles per hour, and that there was evidence upon which the jury could find that the street car was running much in excess of such speed limit, e., 30 miles per hour ; and (2) that the jury could well find that such excessive speed occasioned the injury to plaintiff. The issues were the same upon this trial as upon the previous one. Plaintiff submitted his case upon the single ground of " negligence stated, supra, and defendant, after having by instructions, withdrawn the other alleged grounds of negligence from the jury, pressed the alleged contributory negligence of the plaintiff, and in so doing say that the record evidence is different from that on the former trial. There is serious question as to whether or not defendant's instruction No. 9, withdrawing the humanitarian rule, would not have been error, had not plaintiff voluntarily abandoned that issue by failing to submit it by instruction. At the second trial involved in the record, now before us, the plaintiff had a verdict for $17,500 and judgment was entered for said sum, from which defendant has appealed. When the case was first in this court (Unterlachner v. Wells, 278 S. W. 79), there was little dispute about the facts. At that time we then stated the case (278 S. W. loc. cit. 80, 81):

"Action for Personal Injuries. The plaintiff was struck and injured by an east-bound street car, operated and run by defendant upon Arsenal street, in the city of St. Louis. The accident occurred at the intersection of Arsenal street and Macklind avenue. With some slight modifications, the respondent agrees to appellant's statement of facts. In respondent's brief it is said:

"The statement of facts contained in appellant's brief is a fairly correct abstract of the proceedings that were had before the trial court. We desire, however, to point out a few additional facts."

We shall not overlook these additional suggestions in the course of the opinion. The appellant's statement is as follows:

"This is an action for damages which plaintiff claims he sustained on or about the 1st day of February, 1922, when he was struck by one of the defendant's cars and injured. The accident occurred at the intersection of Macklind avenue and Arsenal street. Arsenal street is an east and west street in the city of St. Louis, about 36 feet wide, and Macklind avenue is a north and south street about the same width. Macklind does not cross Arsenal street, but extends from Arsenal street north, at 5400 west on Arsenal street. The sanitarium grounds are on the south side of Arsenal street, at the point opposite the intersection of Macklind. There are no car tracks on Macklind avenue. At the time of the accident there was a store building on the northeast corner of this intersection, referred to in the evidence as the confectionery store, and a saloon building on the northwest corner. West-bound cars run on the north track, and east-bound cars on the south track. From the north curb line of Arsenal to the first rail of the west-bound track is 10 feet 6 inches, and to the first rail of the east-bound track from the north curb line is 20 feet and 8 inches. At the time of the accident, west-bound cars stopped at the northeast corner (that is, the near side), and east-bound cars stopped with the front of the car about even with the west curb line of Macklind or what would be the near side if Macklind crossed Arsenal. After the accident, the eastbound cars changed the stopping place to the east side of Macklind and stopped with the front end about even with the east building line of Macklind avenue if extended across Arsenal at a yellow pole on the south side of Arsenal, about even with the east building line of Macklind. There is a slight up grade on Macklind west, of about 3 feet to the hundred feet.

"On the evening of February 1, 1922, the plaintiff had been visiting at the confectionery store on the northeast corner of the streets mentioned, and about 10 p. m. he saw a car coming from the west about a block away, and he started from the northeast corner to go across to the southwest corner where the car stopped at that time, in order to catch this car, and was struck by the car about when he was on the north rail of the track. Plaintiff does not remember anything that happened from the time he started across the track.

"Just before the approach of this east-bound car to this intersection, a west-bound car had stopped on the east side of Macklind and two of plaintiff's witnesses, Charles Kranz and George Larkin, got off of the car, and, when the car moved on, they started across Arsenal to the south side in order to go to the sanitarium building where they were employed at that time. They began their work about 11 p. m. and worked to 7 a. m. They were stationary engineers.

"One of the men, Charles Kranz, testified that when the car from which he alighted had gone on that he then looked `west and saw this eastbound car on the hill by the Isolation Hospital about 800 feet west; that he then started to cross Arsenal street, bearing a little to the southeast; that when he got nearly across the street he again looked at this east-bound car, and was then about opposite the Nickel Odeon; that the Nickel Odeon was 150 feet west of the west building line of `Macklind; that the witness since the accident had measured that distance; that at the same time he saw this car up at the Nickel Odeon he also noticed the plaintiff just leaving the northeast corner of the sidewalk and run diagonally across toward what would be the southwest corner if Macklind crossed Arsenal, the place where the east-bound cars stopped at that time to receive and discharge passengers. At the same time he noticed a man standing at this southwest corner at the usual place where east-bound cars stopped to receive and discharge passengers. He watched this car and the plaintiff, and when plaintiff reached the north rail of the east-bound track that plaintiff `kind of stopped and threw his head back. He said: `It looked to me like he ran and when he got there he seen the car was not going to stop, and he tried to jerk back; and then, after he jerked back, why the car hit him, the left-hand side of the front end of the car, about the corner—the front of the car, the left-hand front of the corner.'

"He testified that he observed the rate of speed this car was traveling, and he estimated it at least 20 miles per hour; that the car did not check its speed before it struck plaintiff, and it ran 120 feet before it stopped; that there was no gong sounded before the car struck plaintiff. The witness testified he had been employed at the sanitarium for 7½ years, and that he frequently got off at that corner and was familiar with that corner and where the east and west bound cars stopped at that time; that when the car hit plaintiff it knocked him about 30 feet.

"The other man, George Larkin, who got eff the west-bound car, testified that he got off the car at the same time the witness Kranz did; that he was also employed at the city sanitarium, and had been employed there for 2 years and 8 months; that he frequently got on and off cars at the intersection of the streets mentioned and was familiar with that location and where the east and west cars stopped; that at the time of the accident mentioned and prior thereto west-bound cars stopped with the front end about even with the west building line of Macklind, or what would be the near side if Macklind crossed Arsenal; that after the accident they changed the stopping place of east-bound cars so that they stopped with the front end about even with the yellow pole on the south side of Arsenal, which was about even with the east building line of Mackland. He saw the car that struck plaintiff at the Isolation Hospital on the hill, and saw it again about even with the Nickel Odeon. He did not see plaintiff run across the street, but he did see the street car strike an object, and saw it knock plaintiff about 30 feet, and he went to the plaintiff and identified the plaintiff as the party struck. He says plaintiff was struck by the northeast corner of the car, at about the middle of Macklind and when he was about on the north rail of the east-bound track. He testified he was able to judge the rate of speed, and that in his opinion the car that struck plaintiff was traveling about 30 miles an hour. He also saw a man standing at the usual stopping place where east-bound cars stopped at that time. After the ear that struck plaintiff stopped, he measured the distance it ran, and it was 120 feet from the yellow pole on the south side of Arsenal and the east side of Macklind to the car after it stopped. (This made it run about 145 feet.)

"One of the witnesses testified it was 25 feet from the point where plaintiff was struck back to the edge of the sidewalk at the northeast corner, and both testified plaintiff was knocked 30 feet.

"We have not set out the plaintiff's evidence, because at the time of the trial he...