White v. Pupillo
| Decision Date | 13 June 1924 |
| Docket Number | No. 18607.,18607. |
| Citation | 263 S.W. 1011 |
| Parties | WHITE v. PUPILLO et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; George E. Mix, Judge.
"Not to be officially published."
Action by Floyd White against James Pupillo and another, doing business as Pupillo & Grippe. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Conrad Paeben, of St. Louis (Albert Wiebe, of St. Louis, of counsel), for appellants.
The plaintiff, respondent here, commenced this suit before a justice of the peace against the defendants, appellants here, to recover damages for injuries to his automobile caused by the alleged negligence of the defendants in running their auto truck into and against his automobile.
The case was appealed to the circuit court of the city of St. Louis, where plaintiff obtained a judgment for $395, from which defendants have appealed.
The assigned errors here go to the action of the court in refusing to direct a verdict for the defendants and to the giving and refusing of instructions. No brief is filed on behalf of the plaintiff.
Briefly stated, the undisputed facts in the case are as follows: The collision occurred in the afternoon of December 24, 1921, between 4 and 4:30 o'clock. at the intersection of Cass avenue and Eighteenth street, in the city of St. Louis, Mo. Cass avenue runs east and west, and is 50 feet and 5 inches wide from curb to curb. In the center thereof two street railway tracks are maintained. The distance from the north rail of the north track to the north curb of Cass avenue is 17 feet and 7 inches. `The distance from the south rail of the south track to the north rail of the north track is 15 feet and 1 inch, and the distance from the south rail of the South track to the south curb of Cass avenue is 17 feet and 8 inches. Eighteenth street runs north and south, and is 36 feet wide from curb to curb. The sidewalk on the north side of Cass avenue is 15 feet and 3 inches wide and extends from the curb to the building line. There is a jog at Eighteenth street and Cass avenue; Eighteenth street north of Cass avenue being east of Eighteenth street south of Cass avenue, so that the west line of the Eighteenth street north of Cass avenue, if extended across Cass avenue, would be about in line with the east line of Eighteenth street south of Cass avenue.
The collision occurred at about the point in Cass avenue where its center line intersects the center line of Eighteenth street, south of Cass avenue. Just prior to the collision defendants' truck was going east on Cass avenue and plaintiff's automobile was going south.
Regarding the manner in which the accident occurred the evidence is conflicting. The plaintiff's account of the collision is that on the day of the accident he was driving a Dort touring car southwardly along the west side of Eighteenth street towards Cass avenue; that as he came to the intersection of Eighteenth and Cass avenue he slowed down to about 5 or 6 miles an hour and started to cross the street; that he looked in both directions and saw defendants' truck coming east on Cass avenue, about 70 or 100 feet west of Eighteenth street; that he never realized how fast the truck was coming, and thought he had plenty of time to get across the street; that when he was about to drive on the south street railway track on Cass avenue he saw defendants' truck in front of him running in said track; that he (plaintiff) applied his brakes and stopped his car instantly; that James Pupillo, the defendant, who was the chauffeur of said truck, turned to the right, and as he did so his truck skidded and one of the hind wheels thereof struck the plaintiff's car and turned it completely around and damaged it; and that defendants' truck turned over twice and traveled 79 feet after striking plaintiff's machine.
On cross-examination plaintiff testified that at the time of the collision the left side of his car was about 2 feet west of the west line of Eighteenth street (if continued south) north of Cass avenue; that he saw the truck coming down Cass avenue at 30 miles an hour; that the truck crossed the west line of Eighteenth street south, at...
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... ... to the plaintiff should be considered. Montague v ... Railroad, 264 S.W. 813, 815; White v. Pupillo, ... 263 S.W. 1011, 1012; Stewart v. Furniture Co., 259 ... S.W. 875, 876. (6) The demurrer admitted every fact which the ... jury ... ...
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