Welp V. Bogy
| Decision Date | 03 November 1925 |
| Docket Number | No. 18552.,18552. |
| Citation | 277 S.W. 600 |
| Parties | WELP v. BOGY |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Franklin Miller, Judge.
Action by Ollie Welp against Bernard P. Bogy. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Henry S. Caulfield, of St. Louis, for appellant.
Charles W. Rutledge, of St. Louis, for respondent.
This is an action for damages for personal, injuries alleged to have been sustained by plaintiff as the result of being struck by defendant's automobile. The verdict and judgment were for plaintiff in the sum of $3,415.55, from which defendant has appealed.
The negligence pleaded and submitted to the jury was: First, failure of defendant to keep a vigilant watch; and, second, operation of his automobile at a negligent rate of speed in violation of an ordinance of the city of St. Louis.
The answer was a general denial.
This accident occurred at the intersection of Prairie, Cass, and Easton avenues, in the city of St. Louis, on January 20, 1921, between 8:30 and 9 o'clock p. m. Easton avenue runs northwesterly and Cass avenue westwardly, while Prairie runs north and south. Easton and Cass avenues intersect, forming a wedge, the point of which is about 150 feet east of Prairie.
Plaintiff's evidence tended to show that she and Mrs. Edith Fontana were waiting to board a west-bound Wellston car. They were standing at the usual stopping place for west-bound cars, such point being in the middle of Easton avenue and opposite a yellow post which was on the south side of the street and 25 feet east of Prairie avenue. Having observed a west-bound car approaching, Mrs. Fontana stepped to one side and motioned for it to stop, at which time plaintiff was struck and did not regain consciousness until after she was removed to the hospital. Plaintiff herself had been looking continually toward the east and did not know what struck her, but her witnesses disclosed that an east-bound automobile (which later proved to be that of defendant) coming from the west on Easton on the east-bound car track and running at a speed of 35 or 40 miles an hour turned to the left towards Cass avenue as it crossed Prairie and struck the plaintiff. This machine was stopped at a point 25 feet north of the west-bound car track and 25 to 40 feet west of the point of the wedge made by the intersection of Cass and Easton avenues. Shortly thereafter the west-bound street car came up to the corner and was also stopped. A crowd of people gathered around the automobile, and six or eight men lifted the rear end so that plaintiff, who was lying under the rear axle, might be extricated. There was considerable difficulty in getting her out, because her hair was twisted around the gearings.
Plaintiff and her companion were standing in such a position that the light from a soft drink parlor on the northwest corner of Easton and Prairie avenues shone upon them. Because of the curve in the track, the headlight of the approaching Wellston car did not strike them. The lights of defendant's automobile were burning.
Defendant's evidence to the contrary disclosed that he was coming from the west on Easton avenue en route to a political meeting which was to be held that night on North Market street, and that his intention was to go eastward on Cass avenue to Grand and thence to his destination. There were two ladies in the car with him, a Mrs. Caulfield, who was seated in the front seat, and a Mrs. Ware, who was in the rear seat. When defendant arrived near Prairie, he stopped his automobile approximately 5 feet behind an east-bound street car which was standing west of Prairie in front of the car sheds. This car had stopped to allow some passengers to alight, and meanwhile one of the crew had gone into the car barns for supplies. There were several automobiles in the rear of defendant's auto, two of which passed to the north of the street car while it was standing still and proceeded on down Easton avenue or into Cass avenue at not less than 40 miles an hour. Another automobile came from the south on Prairie, turned the corner into Easton, and then crossed over the car tracks into Cass avenue at about 25 miles an hour.
While he was stopped behind the eastbound car at the car sheds, defendant found that it was too late to attend the political meeting and accordingly decided to cross Prairie and turn his auto around in the open space made by the intersection of Cass and Easton. As soon, therefore, as the street car started eastward, defendant followed behind it and, as it crossed Prairie, turned his car to the left into Cass avenue. He stopped his automobile at a point approximately 25 feet west of the point of the wedge and about even with the curb of the south side of Cass avenue, waiting for the other automobiles to pass So that he would have a clear space in which to turn.
While defendant's automobile was standing in front of the car barns as well as while he was crossing Prairie, he and the ladies with him saw a woman standing in Easton avenue about 30 or 40 feet east of Prairie. They observed that she was continually moving around, stepping into the center of the street car track and out again as though she were in an excited condition. Defendant was able to see her from the light that came from the soft drink parlor on the northwest corner of Easton and Prairie. As he turned into Cass avenue, he passed to her left at a speed of 5 or 6 miles per hour. This woman was still standing in the street when defendant's automobile was brought to a stop.
Shortly after defendant brought his automobile to a standstill, a street car coming from the east came to a stop with a very sudden jolt, a crashing of brakes, and a grinding noise. The front end of the street car was about even with the rear of defendant's auto and 30 feet away. Upon hearing the street car come to a sudden, grinding stop, defendant recalled the woman he had seen in the track, and feared that the street car had struck her. Accordingly, he and the ladies with him got out of the auto and defendant went over to the front of the street car, where a crowd of people had gathered and where there was some one with a flashlight looking around the front of the street car. While here he heard Mrs. Caulfield call out, "Oh, here is somebody." Defendant and the others then went back towards his automobile, where he found Mrs. Caulfield attempting to assist a woman to arise. This woman was sitting in the street at a point about 5 or 6 feet west and two or three feet south of plaintiff's automobile. Defendant and his witnesses emphatically denied that he struck the plaintiff; that she was ever underneath his automobile or in contact with it; that his automobile was lifted off of her body; or that her hair was wrapped around the rear axle.
The sufficiency of the evidence to make a case for the jury is not questioned, but defendant relies chiefly for reversal upon the alleged error in the action of the trial court in excluding the official stenographer's notes, verified by his sworn testimony, of the evidence given at a former trial of this same case by two witnesses for defendant, Mrs. Ella Ware and Mrs. Aimee Lancaster.
It will be recalled that Mrs. Ware was one of the occupants of defendant's automobile at the time the alleged accident occurred. Mrs. Lancaster, a trained nurse by profession, had been a passenger on the eastbound street car, but had alighted from it while it was standing in front of the car barns west of Prairie.
The evidence showed that subpoenas for both Mrs. Ware and Mrs. Lancaster had been issued; that two weeks before the trial defendant personally had gone to Mrs. Ware's home on Newberry Terrace to serve her with the subpœna, but at that time was informed that she was in Chicago, Ill., and would not return to St. Louis prior to the trial of the case; that three or four weeks before the trial defendant personally had gone to Mrs. Lancaster's home on Delmar avenue to serve a subpoena upon her, and had learned that she was in Louisville, Ky., and that it was not known when she would return to St. Louis; that the subpoena for Mrs. Ware was placed in the hands of the sheriff and a return made thereon that she could not be found in the city of St. Louis.
Mr. H. A. Buck, official court reporter in division No. 2 of the circuit court of the city of St. Louis, in which division the former trial of this case was had, was called as a witness for defendant and asked to read the testimony of these two witnesses as preserved in his stenographic notes taken during the first trial. Such testimony was objected to by counsel for plaintiff for the reasons that there was insufficient evidence to establish the fact that such witnesses were not within the jurisdiction of the court, that there was no showing of due diligence in attempting to secure the attendance of such witnesses by compulsory process, and that such evidence had not been preserved in a bill of exceptions. Plaintiff's objection to the introduction of this evidence was sustained by the court op the ground that it was not proper to admit the testimony of a witness given at a former trial pot preserved in a deposition and not preserved in a bill of exceptions, the witness still being alive. Offer of proof was duly made by defendant, and the question for our determination here is the correctness of the trial court's ruling in excluding such testimony.
Generally speaking, this character of evidence is admissible in cases: First, where the witness is dead; second, where he is out of the jurisdiction of the court or as termed in certain cases "beyond seas"; third, is insane, sick, or unable to testify; fourth, where he has been kept away by the connivance, collusion, or consent of the other party; and, fifth, where he cannot be found after due diligence has been exercised to secure his attendance by compulsory process. State...
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