Vitale v. Wells
| Decision Date | 01 June 1926 |
| Docket Number | No. 19450.,19450. |
| Parties | VITALE v. WELLS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Hon. Frank Landwehr, Judge.
"Not to be officially published."
Action by John Vitale against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.
Chas. W. Bates, T. E. Francis, and John F. Evans, all of St. Louis, for appellant.
John T. Manning, of St. Louis (James T. Roberts, of St. Louis, of counsel), for respondent
This is an action to recover damages for personal injuries growing out of a collision in the city of St. Louis between a truck driven by plaintiff and one of defendant's street cars. Plaintiff recovered a judgment, and defendant appeals.
The cause was submitted alone on the last chance doctrine. Appellant's insistence on appeal is that no case was made under such theory of recovery, in that even the most favorable evidence demonstrates that the motorman did not have time within which to stop his car to avoid the injury after plaintiff reached a position of danger.
Defendant did not stand on his first demurrer, but offered evidence, so we look not only to the evidence for plaintiff, but will also consider the evidence for defendant in so far as it aids plaintiff's case.
Plaintiff testified that he was driving his truck westwardly on the north side of Lafayette avenue, and that just as he got to the northeast corner of Lafayette and Mississippi avenues, about the east curb of Mississippi avenue, he looked up Lafayette avenue and saw the street car, which he said was then about 60 or 65 feet west of the south curb of Mississippi avenue. Mississippi avenue is about 40 feet wide, which made the car north 100 feet away from him as he reached the east curb of Mississippi avenue. He said that Die continued at the same speed, and that, when he was on the track, or, rather, when his front wheels were just entering the track, he looked up and saw the car, and that it was then about 20 feet away. He said: "The front wheels of my machine had just hit the east rail when I saw the car a distance of 20 feet from me." He said he thought the car was traveling pretty fast, and that he was going 10 or 12 miles an hour. He testified that he increased the speed of his truck, hoping that he would be able to get out of the way of the street car and avoid the accident.
Wm. M. Brandt testified for plaintiff that he was a passenger on the street car, and that he was standing in the aisle at about the first seat; that the car was well filled; that as they went into the curve to come around into Mississippi avenue he saw the motorman throw off the power, and the car slowed down in taking the curve, and then he threw it on again, which increased the speed of the street car. He said that just as the car was coming into the curve he noticed a delivery truck coming up Lafayette avenue, coming west, and that a collision followed; that, after the impact, the car dragged the truck for a distance of 30 feet. He stated that he figured it was about 80 feet between the entrance of the curb and the northeast corner of Mississippi and Lafayette avenues; that he saw the truck coming west of Lafayette avenue when it was about 80 feet away from the car; that the street car was going about 20 miles an hour before coming into the curve.
On cross-examination, this witness stated that just as the car got to the curve he saw the truck across the street coming west at the intersection of Mississippi and Lafayette avenues; that the truck was just coming into Mississippi at the time the street car was not quite in the curve. He said he did not think the front of the car had quite entered the curve. The following is contained in his testimony :
W. P. Smith, a speed expert, testified that, if the car was going around that curve at the rate of from 12 to 15 miles an hour, the car could be stopped in 15 feet. He said that he took in consideration the fact that the car was in the curve. The fact that the car was crowded, he said, would be in favor of the motorman, and the increased number of passengers would increase the amount of weight, and there was a great deal of resistance in going around a curve of that kind. He said that no motorman could go around that curve at a rate in excess of 15 miles an hour.
Genevieve Voss, a witness for defendant, testified that she was a passenger on the car, and was standing in the aisle holding to one of the seats. She said that as they approached Mississippi...
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Stewart v. George B. Peck Co.
...knowledge of the defective condition which caused plaintiff's fall. Powell v. Schofield (Mo. App.), 15 S.W.2d 876; Vitale v. Wells (Mo. App.), 285 S.W. 522; v. Terminal R. Assn. of St. Louis (Mo. App.), 97 S.W.2d 890; Wheeler v. Sawyer, 219 Mass. 103, 106 N.E. 592; Gould v. Ry. Co., 191 Mas......
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Snyder v. American Car & Foundry Co.
... ... hence this court will not consider on appeal the ... fellow-servant doctrine, as it was not raised in the lower ... court. Pienieng v. Wells, 271 S.W. 66; Vitale v ... Wells, 285 S.W. 522. (d) If the injury was caused by the ... combined negligence of Rodgers and one of defendant's ... ...
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Snyder v. Am. Car & Foundry Co.
...will not consider on appeal the fellow-servant doctrine, as it was not raised in the lower court. Pienieng v. Wells, 271 S.W. 66; Vitale v. Wells, 285 S.W. 522. (d) If the injury was caused by the combined negligence of Rodgers and one of defendant's foremen, either in ordering plaintiff to......
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Stewart v. George B. Peck Co.
...knowledge of the defective condition which caused plaintiff's fall. Powell v. Schofield (Mo. App.), 15 S.W. (2d) 876; Vitale v. Wells (Mo. App.), 285 S.W. 522; Finn v. Terminal R. Assn. of St. Louis (Mo. App.), 97 S.W. (2d) 890; Wheeler v. Sawyer, 219 Mass. 103, 106 N.E. 592; Gould v. Ry. C......