Wagner v. Wells

• Decision Date: 06 May 1924
• Docket Number: (No. 18183.)
• Parties: WAGNER, v. WELLS.
• Court: Missouri Court of Appeals

261 S.W. 682

WAGNER, v. WELLS.

(No. 18183.)

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from St. Louis Circuit Court, Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by George Wagner against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.

Chas, W. Bates. T.E. Francis and G. T. Priest, all of St. Louis, for appellant.

W. Paul Mobley, of St. Louis, for respondent.

ALLEN, P.

This is an action for personal injuries sustained by plaintiff resulting from a collision between a mortorcycle upon which he was riding and a street car operated by the defendant receiver in the city of St. Louis. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $500, and the defendant has appealed.

The casualty occurred on May 20, 1921, while plaintiff, driving a, motorcycle with a side car attached, was attempting to proceed east on Lafayette avenue, a public street extending east and west in the city of St. Louis, in the first block west of Jefferson avenue, which intersects Lafayette avenue at right angles. On Lafayette avenue the defendant maintained two parallel street car tracks ; the north track being for the operation of west-bound cars, and the south track for the operation of east-bound cars. It appears that Lafayette avenue is about 50 feet in width from curb to curb, that the distance from the south curb to the south rail of the east-bound track is a little more than 16 feet, and that the distance from the south rail of the east-bound track to the south rail of the west-bound track is a little more than 10 feet.

At the time of the casualty defendant was engaged in relaying the granite street paying between its rails and tracks on Lafayette avenue west of Jefferson avenue. An alley enters Lafayette avenue from the south, between Jefferson avenue and Texas avenue, the next street west of Jefferson avenue, parallel therewith, and in the course of this reconstruction work defendant had placed a large pile of granite paving blocks on the south side of Lafayette avenue, at or about the east line of this alley; the pile extending from the south curb practically to the south rail of the east-bound track, constituting a barrier across that portion of Lafayette avenue south of the street car tracks, and making it necessary for eastbound vehicles, upon retching this pile of stones, to turn to the left and cross over the street car tracks to the north side of the street in order to proceed eastwardly. It appears that west of this alley for a distance of 100 feet or more a line of granite paving blocks had been temporarily placed by defendant on the surface of the street along the southern edge of the east-bound street car track, to prevent vehicular travel over this newly laid paving between and about the street car tracks at that place. According to plaintiff's testimony, this line of paving stones extended to within about 10 feet of the pile of stones mentioned above, leaving an opening about 10 feet in width, through which vehicles had been passing in order to turn across the street car tracks to the north side of the street.

Plaintiff resided on Lafayette avenue, a short distance west of Texas avenue, and had his place of business on Jefferson avenue, a short distance north of Lafayette avenue. At the time of his injury he was going from his home to his place of business, shortly after 6 p. m., in broad daylight. He testified that, as he proceeded east on the south side of 'Lafayette avenue, he operated his motorcycle at a speed of about 18 or 20 miles per hour until he came within about 50 feet of the pile of stones or barrier mentioned above, when he 'reduced the speed to about 10 miles per hour. Upon reaching a point about opposite the alley, within a short distance of the pile of stones mentioned, he turned his motorcycle to the left to proceed through the opening mentioned and across the car tracks, following, as he says, the tracks of automobiles. According to his testimony he was then proceeding at about 10 miles per hour, and could have stopped in about 10 feet. He testified that he had traveled this same route early in the morning of that day, and had found this space of 10 feet, mentioned above, entirely clear for traffic; but upon this occasion a number of granite paving blocks, perhaps from 6 to 12 in number, were lying therein, scattered about, the blocks being about 12 inches in length and 6 or 7 inches in width and thickness. He said, in substance, that he slowed down to make this turn to the left, watching the barrier mentioned, and paying attention to the control of his motorcycle, but did not see these loose granite blocks in his pathway until he was upon them.

His testimony is that when he struck these loose granite blocks the side car of his motorcycle bounded upward, throwing him "up in the air"; that he was unable to force the side car down, and it bounced along and struck a "high rock"; that by reason of being thrown upward he was caused to accidentally turn on the gasoline throttle, which was in his left hand, causing the speed of the motorcycle to be increased ; and that the motorcycle continued across the street and struck the side of a street car on the west-bound track, near the left front corner thereof. As a result of the collision plaintiff was thrown to the street and injured. According to the testimony for plaintiff, this west-bound street car was about 10 feet east of the "main pile of rock," was proceeding at about the rate of 3 miles per hour, and could have been stopped in 3 feet. When asked, on...