Westerman v. Brown Cab Co.

• Decision Date: 03 February 1925
• Docket Number: No. 18934.,18934.
• Citation: 270 S.W. 142
• Parties: WESTERMAN v. BROWN CAB CO.
• Court: Missouri Court of Appeals

270 S.W. 142

WESTERMAN v. BROWN CAB CO.

No. 18934.

St. Louis Court of Appeals. Missouri.

February 3, 1925.

Rehearing Denied February 25, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by C. M. Westerman against the-Brown Cab Company. From a judgment for plaintiff on appeal from justice court, defendant appeals. Affirmed.

Louis J. Portner, of St. Louis, for appellant.

Evans & White, of St. Louis, for respondent.

DAUES, P. J.

This is an action for damages growing out of an automobile collision. Plaintiff recovered a verdict and judgment for $338.19, and defendant appeals. The action originated in a justice court, where plaintiff prevailed. On appeal to the circuit court of the city of St. Louis the cause was tried on the statement filed before the justice.

The collision occurred at the intersection of Theresa avenue and Washington boulevard in this city. Theresa avenue is a north and south street, and Washington boulevard runs east and west. There is a slight rise on Theresa avenue approaching Washington boulevard from the south, and a decline in the grade on Washington boulevard from the west.

Reviewing the record on defendant's demurrer to the evidence, we must look for the most favorable evidence to support the verdict. Plaintiff testified that he is a physician, and that on November 5, 1922, he was driving his automobile north on Theresa avenue towards Washington boulevard; that he had with him in the machine at the time his wife and child, the infant being in his lap. It was about 1:30 o'clock in the afternoon, and had been raining, and the streets were almost clear of traffic. As he came to the intersection of the streets mentioned he brought his car to "a full and complete stop." He looked east, and there was no traffic from that direction, and he says he could see no traffic coming from the west. He had a clear vision to the east, but the vision was not so extensive to the west because of buildings constructed near the sidewalk. There is a lamp post in the center of the street at this intersection, and, as plaintiff drove his machine north onto Washington boulevard, in order to make the turn west and after his machine had reached a point half way between the south curb of Washington boulevard and the center of same, he for the first time noticed defendant's taxicab approaching from the west at a speed of about 27 miles an hour. Plaintiff attempted to make the turn, his machine then going at about 4 miles an hour, when defendant's chauffeur put on the brakes of his car, making a complete circle in attempting to stop, and in doing so the rear end of defendant's car struck the side of plaintiff's car, causing damage to plaintiff's car. At the time of the impact defendant's car had actually whirled entirely around, facing west. There was evidence that defendant sounded no warning or signal of the approach of the taxicab.

On cross-examination plaintiff testified that, when he looked west on Washington boulevard before attempting to enter the boulevard and make the turn, the defendant's car was not within the block immediately west of him, and that the taxicab was at least up to Grand avenue, which is one block west of this intersection. He said that when he first noticed defendant's machine it was being driven so rapidly that he could not see it. He modified this by saying that, when he first saw the taxicab, it was about three houses from the corner on the southwest corner of this intersection, and in making estimates in feet he gave the distance as about 50 feet from him, allowing plaintiff the most favorable estimate made by him on cross-examination.

Plaintiff was corroborated by Dr. Unterberg, this witness testifying that he was immediately behind plaintiff's car, having also stopped for the intersection; that he saw plaintiff stop his car to enter Washington boulevard, and that plaintiff, after completely stopping his car, started ahead. Witness said he saw the collision, and described same very substantially as related by plaintiff. When asked on cross-examination how far defendant's taxicab was from plaintiff's car when the witness first saw it, he answered, "The car was moving and it was a blur." He finally estimated that the taxicab was at least 50 feet or more away from plaintiff's car when he first saw it. The witness further stated that he was unable to say whether his opportunity to see a car coming from the west was the same as that of the plaintiff at that time, but that so far as he knew there was nothing outside of plaintiff's car, which was a closed coupe, to prevent plaintiff from seeing objects approaching from the west at that place. Washington boulevard at this point is about 100 feet wide, and the distance from the lamp post to the south side of Washington boulevard is approximated at 50 feet. Dr. Unterberg testified that plaintiff was driving his machine very slowly after he started into Washington boulevard and attempted to make the turn.

Defendant offered in...