Wenzel v. Busch
| Decision Date | 08 June 1923 |
| Docket Number | 23521 |
| Citation | 259 S.W. 767 |
| Parties | WENZEL v. BUSCH et al |
| Court | Missouri Supreme Court |
Rehearing Denied March 7, 1924.
Bryan Williams & Cave, of St. Louis, for appellants.
Paul P Hoegen and Richard A. Jones, both of St. Louis, for respondent.
I. Appeal from the circuit court of the city of St. Louis.
Plaintiff was injured in being run over by an automobile driven by defendant Birschkus, chauffeur of defendant Busch, while upon the business of said Busch.
Plaintiff obtained judgment for $ 8,500, from which defendants duly appealed to this court.
The petition charges the defendants with negligence in operating said automobile in violation of certain city ordinances of said city, in negligently failing 'to keep same as near as possible to the right-hand curb, to wit, the south curb of said Gravois avenue,' in negligently failing 'to sound a signal in such a way as to give warning to plaintiff of his approach or to sound a signal at all,' and in driving at a speed exceeding 8 miles per hour, all contrary to said ordinances, which are set out in full in the petition. Also, that said automobile was operated at an excessive and dangerous rate of speed over said crossing, and that said chauffeur negligently failed to keep a vigilant watch or any watch for pedestrians on said street or crossing. That 'when he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger of being struck by the said automobile in time by the exercise of ordinary care and with means at hand to have avoided said automobile striking and injuring plaintiff, he negligently failed and omitted to stop, swerve, or reduce the speed of said automobile in time to have avoided striking and injuring the plaintiff.'
The answer was a general denial and plea of contributory negligence.
The accident happened October 3, 1920, at the intersection of Gravois and California avenues in said city in the daytime. California avenue runs north and south, and Gravois avenue east and west. There is a double-track street railway on Gravois avenue which turns at the intersection of said avenues and runs north on California avenue; also a double-track street railway on California avenue south of Gravois avenue which turns east at said intersection and runs east on Gravois avenue.
Plaintiff testified: On the day in question, he, being a man of 62 years of age, was walking south on the east side of California avenue, intending to cross over to the south side of Gravois avenue, and while near the curb on the north side of the street he looked both ways, east and west, on Gravois avenue. There was no one near; a street car was standing on the south track at the southeast corner of the intersection. Plaintiff saw this street car. (Behind the street car, defendant Birschkus had stopped the automobile he was driving on the track.) Plaintiff did not see the automobile, on account of the presence of the street car, which hid it from view. The street car was north-bound, and about the same time plaintiff left the north curb to proceed south over the crossing to the south side of Gravois avenue the street car started and turned north up California avenue. Birschkus followed in the track of the street car, as it made the turn, and just about the time the rear end of the street car passed the north car track running east on Gravois avenue said chauffeur, who intended to drive east on Gravois avenue, turned east for that purpose, and struck plaintiff with the front of the automobile, just as plaintiff was about in the center of the north track of the street railway on Gravois avenue.
Plaintiff further testified: He did not see the automobile until it was within 6 feet of him coming directly towards him when it was too late to escape. The chauffeur did not give any signal or warning of his approach. The street car had hidden the automobile from plaintiff's view, until it suddenly emerged from behind the street car, knocked him down, and ran over him and seriously injured him.
Besides himself, two apparently disinterested witnesses testified for plaintiff. Their testimony was in substantial accord with his as to the material facts stated by him.
Plaintiff also put the defendant chauffeur on the stand, and proved his relationship with defendant Busch. He was thereupon cross-examined by defendants, and testified: When the street car, behind which he had stopped, started, he gave a signal and started to cross California avenue on high speed, but changed to second speed, as he passed over. He could not see east on Gravois avenue until the street car made its turn north into California avenue. He was driving a Pierce-Arrow car, and there was a Ford car at a point a little est of California avenue, standing on the south side of Gravois avenue, about two feet south of the south rail of the south street railway track on said avenue. He could not drive on the south side of Gravois avenue next to the curb, because of the Ford. He was driving about 12 miles an hour as he crossed over on the east-bound car track on Gravois avenue, when he first saw plaintiff in front of him about 6 feet away. He gave a signal to plaintiff, but plaintiff did not stop (i. e., or notice the signal). He could not turn south, because of the Ford, so he put on his brakes and turned north to go behind the plaintiff, when plaintiff jumped back north in front of him, and the bumper of the automobile struck plaintiff and knocked him down, but witness stopped the automobile before it passed clear over plaintiff, and while plaintiff was under it between the front and back wheels, from whence he and others rescued plaintiff. The automobile struck plaintiff while plaintiff was between the rails of the north track. Witness also testified he could stop his car, at the speed he was going, within 2 or 3 feet after he struck plaintiff. The wheels did not run over plaintiff, but he was knocked down by the bumper right in front of the machine, fell to the street, and the automobile passed over without the wheels striking him.
Plaintiff's evidence also tended to show: That the collision occurred on the north car track on the north side of Gravois avenue; that the car tracks were of the usual width, 5 1/2 feet between tracks, and 4 feet and 8 1/2 inches between rails, and the streets were about 60 feet wide between the property lines and 35 feet between curb lines. The street railway tracks were in the center of the streets.
Plaintiff also introduced in evidence the ordinances of the city, pleaded in the petition, which were as follows:
As to his injuries, plaintiff testified: He was kind of knocked senseless and fell to the street. He was picked up, carried into a drug store at the corner, where they washed his face. He suffered great pain in his right side. Was taken from the drug store to the City Hospital, where they gave him emergency treatment. He was delirious, and suffered terrific pain. They then took him to a room in the hospital, where he remained about 12 days, and was attended by nurses, day and night, and was very sick. They then took him home, and put him to bed. He was so weak he could not walk, and suffered terrific pains when he made the slightest movement, and could not sleep at nights on account of the pain. He sat upright in bed for about 8 weeks. Could not lie on one side on account of fractured...
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