Webb v. Cox

• Decision Date: 08 November 1932
• Docket Number: No. 21968.,21968.
• Parties: WEBB v. COX.
• Court: Missouri Court of Appeals

53 S.W.2d 1057

WEBB v. COX.

No. 21968.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from St. Louis Circuit Court; Arthur H. Bader, Judge.

"Not to be officially published."

Action by John Webb, an infant, by Mrs. Lulu De Grant, his next friend, against Edward A. Cox. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Leahy, Saunders & Walther and William O'Herin, all of St. Louis, for appellant.

Mark D. Eagleton, Dan P. Reardon, and Frank P. Aschemeyer, all of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff on Natural Bridge avenue, in the city of St. Louis, as a result of being struck by defendant's automobile. The trial, with a jury, resulted in a verdict and judgment for plaintiff for $5,000, and defendant appeals.

The accident, in which plaintiff sustained the injuries for which he sues, occurred just east of the intersection of Natural Bridge avenue with Kingshighway boulevard. Plaintiff was fifteen years old at the time of the accident, and was seventeen at the time of the trial. Natural Bridge avenue at the place of the accident is about thirty-five feet wide. There are two street car tracks in the center of the avenue. Plaintiff was struck at a point east of a Y formed by the westbound street car track, and extending onto a lot on the north side of Natural Bridge avenue, a short distance east of Kingshighway boulevard. In other words, the west-bound track runs northwesterly onto the lot on the north side of Natural Bridge avenue, and then runs out southwesterly to the east-bound track on Natural Bridge avenue, so that west-bound street cars may run onto this Y and then back out onto the east-bound track, thus turning the car into a position to proceed east on the east-bound track.

Plaintiff at the time of his injury was in the employ of the Postal Telegraph Company as a messenger boy. He was riding a bicycle, and was following a west-bound truck on Natural Bridge avenue. The truck was straddling the north rail of the west-bound street car track. The truck came to a stop and plaintiff pulled around to the left-hand side of the truck. At the same time a Natural Bridge street car was backing out on the west prong of the Y onto the east-bound street car track, and was blocking traffic going west. Plaintiff, seeing the street car, came to a stop to the left of the truck. He stepped down off the bicycle, putting both feet on the ground, with the horizontal bar between his legs. He was facing west, and was north of the center of the street. He testified that he first noticed defendant's automobile when it was coming around the back end of the street car, and was then about thirty-five feet away from him and was traveling between fifteen and twenty miles an hour; that after the automobile passed the street car it turned over toward him, that is, to the northeast, and came straight at him; that while it was coming straight at him it traveled about thirty or thirty-five feet; that it kept right on straight toward him, and did not slow down at any time; that when it got almost to him it swerved to the right, or south, and at that time it struck him; that the left front fender struck him; that there was room enough for two automobiles between the south rail of the east-bound street car track and the curb on the south side of Natural Bridge avenue.

Charles P. Ceresia, testifying on behalf of plaintiff, stated that plaintiff was north of the center of Natural Bridge avenue when he was struck, and that the automobile went from sixty to seventy-five feet east of the point of collision before it came to a stop.

There was evidence showing that the automobile traveling at a speed of fifteen miles per hour could have been stopped within twelve or fifteen feet, and traveling at twenty miles per hour could have been stopped within twenty feet. There was also evidence that at the place of the accident there were several automobiles parked at the curb on the south side of Natural Bridge avenue.

Defendant assigns error here upon the giving of plaintiff's instruction submitting the case to the jury under the humanitarian rule. The complaint against the instruction is that it authorized the jury to find for plaintiff under the humanitarian...