Vaccaro v. Pevely Dairy Co.
| Decision Date | 07 January 1930 |
| Docket Number | No. 21053.,21053. |
| Parties | VACCARO v. PEVELY DAIRY CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.
"Not to be officially published."
Action by Joseph Vaccaro against the Pevely Dairy Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Anderson, Gilbert & Wolfort, of St. Louis, for appellant.
Walter L. Brady and David J. Murphy, both of St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff on May 11, 1927. Upon a trial to a jury, a verdict was returned in plaintiff's favor, and against defendant, in the sum of $4,000; and from the judgment rendered, defendant has duly appealed.
By reason of the narrow limits embraced on this appeal, it will suffice to say of the pleadings that the petition counted, among other matters, upon the humanitarian doctrine, as to which charge alone the case was submitted to the jury, and that the answer filed by defendant was a general denial.
On the day of the accident, plaintiff, a man 46 years of age and about 5 feet in height, had gone to defendant's place of business at Grand and Chouteau avenues, in the city of St. Louis, in search of employment. After an interview with the stable foreman, he left the premises, and walked out on the north side of Chouteau avenue, near Motard street, where he leaned up against an iron trolley pole, while he deliberated whether to go east to Grand avenue or west to Spring avenue to board a car. This pole stood about a foot back from the curb, which in turn was 6 or 7 inches above the surface of the street.
Plaintiff had his back to the west, and was facing to the southeast, or in the general direction of Grand avenue, as he leaned against the pole. Just in front of him stood one of defendant's milk trucks, which was parked alongside the curb, and headed to the west, with the driver's seat directly opposite the pole. This particular truck was a 7½-ton Mack truck, with a part stake and a part closed body, and having an overhang beyond the wheels of as much as 14 inches. From the surface of the street to the bottom of the truck was 45 inches; the distance between the wheels on either side was 10 feet 6 inches; and the distance from the point where the body began to the rear wheel was 6 feet 8 inches. It was also shown that the space between the outer edges of the rear wheels was 22½ inches greater than the corresponding space between the edges of the front wheels. The driver of the truck admitted that his right rear wheel was touching the curb, but whether the front wheel was also against the curb does not clearly appear, the impression of the driver being that it was out for a short distance in the street.
Plaintiff stood against the pole for about 10 minutes, during all of which time the motor of the truck was not running. Finally the driver climbed into the truck, and started his engine (although plaintiff, who had his attention fixed on other matters, was not aware of the fact), and then moved the truck forward for about two feet, when several of the bystanders shouted to him to stop. Plaintiff testified that he saw the truck move, and that it struck him on the right side, after which he was rendered unconscious, so as to have no further knowledge of what occurred. It was shown by other witnesses, however, that plaintiff fell over head first, and lay parallel to and touching the curb, with his head to the east, and his feet to the west, his head being a few inches in front of the rear wheel, which had pushed the body forward for a slight distance. His principal injuries consisted of fractures of the right jawbone, right collar bone, right arm, and of two of the ribs on the right side.
Defendant has only one point for our consideration, which is that the demurrer to all the evidence should have been sustained, and as the basis for this contention counsel argue, first, that the verdict is so contrary to the physical facts that it should not be allowed to...
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