Varley v. Columbia Taxicab Co.

• Decision Date: 08 April 1922
• Docket Number: No. 22770.,22770.
• Parties: VARLEY v. COLUMBIA TAXICAB CO. et al.
• Court: Missouri Supreme Court

240 S.W. 218

VARLEY v. COLUMBIA TAXICAB CO. et al.

No. 22770.

Supreme Court of Missouri, Division No. 1.

April 8, 1922.

Appeal from St. Louis Circuit Court; Prank Landwehr, Judge.

Action by James Varley against the Columbia Taxicab Company and another. From a judgment for plaintiff, defendants appeal. Affirmed on condition that plaintiff remit part of the judgment.

Guy A. Thompson, of St. Louis, for appellant Columbia Taxicab Co.

Bryan, Williams & Cave, of St. Louis, for appellant O'Reilly.

Marshall & Henderson and Foristel & Eagleton, all of St. Louis, for respondent.

GRAVES, J.

Action for personal injuries. Plaintiff was a passenger in a taxicab belonging to defendant Columbia Taxicab Company. There was a collision between this taxicab, and a Ford car owned and driven by the defendant Joseph M. O'Reilly, who was driving upon Olive street in the city of St. Louis, and the taxicab was being driven south on Taylor avenue, and it was at the crossing of these two streets that the accident occurred. Olive street runs east and west, and Taylor avenue at the point of collision runs practically north and south. The impact of the Ford car turned over the taxicab, and plaintiff was seriously injured.

The plaintiff pleaded that the point of collision was in the business portion of the said city, and that there was an ordinance which forbid the running of these cars at a speed greater than 8 miles per hour in the business portion of the city, and not more than 10 miles per hour in other portions of the city. He also pleaded the ordinance with reference to the right of way given to vehicles such as these at the intersection of streets. The negligence charged as against the two defendants had better be set out in full, as some question is made in the brief. That portion of the petition reads!

"Plaintiff states that the injuries sustained by him were directly caused by the carelessness and negligence of the defendant Joseph M. O'Reilly in the following respects, to wit:

"First. In failing to give plaintiff or the driver of the automobile in which plaintiff was riding a timely signal with the bell, horn, or other device for signaling on the automobile of the defendant Joseph M. O'Reilly, as said defendant's automobile approached the automobile in which plaintiff was riding at the intersection of said Olive street and Taylor avenue, when said defendant saw, or by the exercise of ordinary care could have seen, the automobile in which the plaintiff was riding, in and along said Taylor avenue at its intersection with said Olive street, in time to have given plaintiff or the driver of the automobile in which plaintiff was riding a reasonable time or opportunity to reach a place of safety, but negligently caused the automobile of defendant Joseph M. O'Reilly and the automobile of the defendant Columbia Taxicab Company to collide.

"Second. In failing to keep a vigilant watch or any watch for persons or vehicles upon said Taylor avenue at or near its intersection with said Olive street, when said defendant knew, or by exercise of ordinary care could have known, that plaintiff and others were likely to travel in and upon said Taylor avenue at its intersection with said Olive street, but negligently ran said automobile of defendant Joseph M. O'Reilly against and upon the automobile in which plaintiff was riding.

"Third. In operating said defendant's automobile along said Olive street at its intersection with said Taylor avenue at a high and dangerous rate of speed, to wit, at the rate of 35 miles per hour, when said defendant knew, or by the exercise of ordinary care could have known, that plaintiff and others were likely to travel in and upon said Taylor avenue at its intersection with said Olive street, and that, in so running said defendant's automobile at said high, excessive, and dangerous rate of speed, it was likely to cause a collision with automobiles traveling along said Taylor avenue at its intersection with said Olive street.

"Fourth. In failing to slacken the speed of defendant's automobile as it approached said Taylor avenue along said Olive street, and in failing to have said defendant's automobile under control when approaching said Taylor avenue, and that such failure so to do directly caused the injury sustained.

"Fifth. That at the time said defendant's automobile was approaching the automobile in which plaintiff was riding said defendant saw, or by the exercise of ordinary care could have seen, plaintiff and the automobile in which he was riding in and upon said Taylor avenue at its intersection with said Olive street, and in a position of imminent peril of being struck by said defendant's automobile, in time thereafter, by the exercise of ordinary care, with the means at hand, and with reasonable safety to himself and the other occupants of his said automobile, to have either stopped, slackened the speed of, or turned same so as to have avoided striking the automobile in which plaintiff was riding, but that said defendant negligently failed to do so, and negligently ran said defendant's automobile against and upon the automobile in which plaintiff was riding.

"Plaintiff states that the injuries sustained by him were directly caused by the defendant Columbia Taxicab Company in the following respects, to wit:

"First. In failing to give the automobile of the defendant Joseph M. O'Reilly the right of way at the intersection of said Taylor avenue and said Olive street, when the defendant Columbia Taxicab Company knew, or by the exercise of ordinary care could have known, that the defendant Joseph M. O'Reilly's automobile was traveling in a westerly direction along said Olive street at its intersection with said Taylor avenue, and while the defendant Columbia Taxicab Company's automobile was traveling in a southerly direction along said Taylor avenue at its intersection with said Olive street.

"Second. In failing to give the driver of the automobile of the defendant Joseph M. O'Reilly a timely signal with the bell, horn, or other device for signaling on the automobile of defendant Columbia Taxicab Company, as said defendant's automobile approached the automobile of the defendant Joseph M. O'Reilly at the intersection of said Taylor avenue and said Olive street, when the defendant Columbia Taxicab Company saw, or by the exercise of ordinary care could have seen, the automobile of the defendant Joseph M. O'Reilly in time to have given the driver of the automobile of the defendant Joseph M. O'Reilly a reasonable time or opportunity to reach a place of safety, but negligently caused the automobile of the defendant Columbia Taxicab Company to run against and upon the automobile of the defendant Joseph M. O'Reilly.

"Third. In failing to keep a vigilant watch or any watch for persons or vehicles upon said Taylor avenue at its intersection with said Olive street, when the defendant Columbia Taxicab Company knew, or by the exercise of ordinary care could have known, that the automobile of the defendant Joseph M. O'Reilly and others were likely to travel in and upon said Olive street at its intersection with said Taylor avenue, but negligently ran the automobile of the defendant Columbia Taxicab Company against and upon the automobile of the defendant Joseph M. O'Reilly.

"Fourth. In operating the automobile of the defendant Columbia Taxicab Company along said Taylor avenue at its intersection with said Olive street at a high, excessive, and dangerous rate of speed, to wit, at the rate of 35 miles per hour, when said defendant knew, or by the exercise of ordinary care could have known, that the automobile of the defendant Joseph M. O'Reilly and others were likely to travel in and upon said Olive street at its intersection with said Taylor avenue, and that, in so running said defendant's automobile at such high, excessive, and dangerous rate of speed, it was likely to collide with the automobile of the defendant Joseph M. O'Reilly so traveling along said Olive street at its intersection with said Taylor avenue.

"Fifth. In failing to slacken the speed of the automobile of the defendant Columbia Taxicab Company when it approached said Olive street along said Taylor avenue, and in failing to have said defendant's automobile under control when approaching said Olive street, and such failure so to do directly caused the injuries to plaintiff.

"Sixth. That at the time the automobile of the defendant Columbia Taxicab Company was approaching the automobile of the defendant Joseph M. O'Reilly the defendant Columbia Taxicab Company saw, or by the exercise of ordinary care could have seen, the automobile of the defendant Joseph M. O'Reilly in said Olive street at its intersection with said Taylor avenue, and in a position of imminent peril of colliding with the automobile of the Columbia Taxicab Company, in time thereafter, by the exercise of ordinary care, with the means at hand, and with reasonable safety to the driver of said automobile and the other persons therein, to have stopped, slackened the speed of, or turned the same so as to have avoided striking the automobile of the defendant Joseph M. O'Reilly, but that said defendant Columbia Taxicab Company negligently failed to do so, and negligently ran said automobile against and upon the automobile of the defendant Joseph M. O'Reilly."

Defendant O'Reilly answered by a general denial. Columbia Taxicab Company in its answer admits that plaintiff was its passenger, and admits that the two streets mentioned were public streets of the city, admits that there was a collision on February 5, 1919, at the intersection of the two named streets, but avers that the collision was occasioned by the negligence of O'Reilly. It denies that it was negligent. The reply was such as to make up the issues.

Upon a trial before a jury the plaintiff had a verdict for $75,000, upon which judgment was entered. At a later term when the motion for new trial was up for hearing the...