Weiss v. Sodemann Heat & Power Co.

• Decision Date: 04 January 1921
• Docket Number: No. 16321.,16321.
• Citation: 227 S.W. 837
• Court: Missouri Court of Appeals
• Parties: WEISS v. SODEMANN HEAT & POWER CO.

227 S.W. 837

WEISS v. SODEMANN HEAT & POWER CO.

No. 16321.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

"Not to be officially published."

Action by Lillian Weiss, minor, by Gustav Weiss, her next friend, against the Sodemann Heat & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Clarence T. Case, Victor J. Miller, and Fred Berthold, all of St. Louis, for appellant. Hall & Dame, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff by reason of being struck by an automobile truck driven by defendant's servant. On June 8, 1017, at about 5 o'clock in the afternoon, plaintiff, who was then about 17 years of age, was proceeding south along the west side of Ninth street crossing Pine street, in the city of St. Louis. As she was attempting to cross Pine street at the usual crossing place at the west side of Ninth street, and when she had reached a point nine or ten feet from the north curb line of Pine street and near the westbound street car track on said street, she was struck by defendant's truck, which was proceeding west on Pine street. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $1,000, from which the defendant prosecutes this appeal.

The defendant, appellant here, insists that the trial court erred in overruling defendant's instruction in the nature of a demurrer to the evidence interposed at the close of plaintiff's case and again at the close of the entire case. The argument in support of this assignment of error proceeds upon the theory that the evidence shows conclusively that plaintiff negligently walked into the side of defendant's truck; that no negligence was shown on the part of defendant; and that plaintiff's injury was conclusively shown to have been due to her own negligence. We shall therefore refer to the testimony in some detail.

Plaintiff testified that when she left the sidewalk at the northwest corner of Ninth and Pine streets, intending to cross the latter street, she looked both to the east and to the west on Pine street, and saw no at to mobile or other vehicle approaching; that when she had proceeded about ten feet, and was near the north or west-bound car track on Pine street, she was struck by defendant's truck, which was being driven westwardly on said street; and that she did not see the truck until it struck her. She stated that the "front part of the machine" struck her, knocking her down, and that she fell under the truck and the rear wheels thereof passed over her legs. Her further testimony on direct examination is that the "front part of the right side" of the truck struck her; that she heard no bell, horn, or other signal of warning; and that after striking her the truck continued west on Pine street for nearly a block, when the driver thereof stopped and returned on foot. In the meantime plaintiff had been picked up by two young men who were near her at the time of the casualty, and who testified as witnesses in the case.

On cross-examination plaintiff denied that she ran into the side of the automobile, saying: "It ran into me." And she reiterated that the front part of the machine struck her. When asked if the front wheel struck her, she said:

"The front wheel.

"Q. That was back of the front part? A. Yes, sir.

"Q. On the right side? A. The right front side.

"Q. Was it back of the cab? A. No, sir."

Charles Simpson, a witness for plaintiff. testified that he and his brother, Leo Simpson, were crossing Pine street at the west Ninth street crossing, and were quite near plaintiff when she was struck. This witness stated that he was in "reaching distance" of plaintiff and "tried to catch her to keep the car from hitting her—the truck." He stated that he did not see the truck until just as it struck plaintiff; that the fender on the right side of the truck struck plaintiff, knocking her under the truck, and the right rear wheel ran over her. He said that he heard no bell, horn, or other signal given of the approach of the truck. On cross-examination he again stated that the fender struck plaintiff, saying: "It was back, kind of along—over the step. It is more of a step, this fender that runs both ways." He said that the front wheel did not strike plaintiff; that the front wheel had passed her before she was struck. His further testimony is to the effect that the driver of the truck turned the front wheels thereof to the left, so that plaintiff was struck by the fender at the right of the truck.

Leo Simpson testified that he was crossing Pine street at the crossing mentioned and was within a few feet of plaintiff when she was struck. He testified that the truck which struck and injured plaintiff "dodged around a Cherokee car on Ninth and Pine"; that it ran over his left foot, struck plaintiff, knocking her down and running over her. In answer to a further question the witness said:

"I stepped with my left foot out that way [illustrating] and this automobile dodged around this Cherokee car, around on Ninth street, and hit my left foot, and passed my foot, and I dodged back; I jumped back. * * * And the car struck her [plaintiff] about the body or shoulder, some place in there, knocking her down, knocked her under the wheel, and the right-hand [rear] wheel run over her limb between the knee and the ankle."

When asked if he saw the truck before it struck plaintiff, he said:

"No, sir; I did not, because it dodged around the car so quick I did not see it."

And he stated that the "Cherokee car" mentioned by him was proceeding south on Ninth street, and that "it was just out of the crossing when the car [the truck] dodged around it." And he stated that he heard no bell or other signal given.

All of the testimony in plaintiff's behalf tends to show that defendant's driver was alone in the cab of the truck at the time of the accident. And Leo Simpson testified that he was positive that no one was with the driver at the time of the accident, but that he saw some one jump into the truck after it had proceeded a short distance west en Pine street.

Defendant's chauffeur, one Gokenbach, did not testify at the trial. It appears that he was then engaged in the military service of the United States. An affidavit for a continuance, filed by the defendant, was read in evidence; and it was admitted that Gokenbach, if present, would testify that plaintiff ran into the right rear wheel of the truck which he was driving; that he immediately applied his brake, threw out the clutch, and brought the truck to a stop within a distance of 3 or 4 feet; that plaintiff was thrown toward the north, and that none of the wheels of the truck passed over any part of her body; that the truck weighed 3 tons, and had a load of about 400 pounds on it at the time.

One Lee Larsen, a witness for defendant, testified that he was on defendant's truck with the driver at the time of the casualty. His testimony is to the effect that plaintiff stepped from the north curb of Pine street between two automobiles that were parked along the curb, and "stepped into the side of the machine," and that the truck "stopped right away";...