Williams v. Columbia Taxicab Co.

• Decision Date: 02 May 1922
• Docket Number: No. 17093.,17093.
• Citation: 241 S.W. 970
• Parties: WILLIAMS v. COLUMBIA TAXICAB CO.
• Court: Missouri Court of Appeals

241 S.W. 970

WILLIAMS v. COLUMBIA TAXICAB CO.

No. 17093.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Arthur Williams against the Columbia Taxicab Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Guy A. Thompson, of St. Louis, for appellant.

Kelley, Starke & Moser and Chas. E. Morrow, all of St. Louis, for respondent.

DAUES, J.

This is an action for damages for personal injuries, growing out of a collision between a motorcycle ridden by plaintiff and an automobile driven by defendant's agent. Upon a trial before a jury, plaintiff had a verdict for $2,500, upon which judgment was entered.

The second amended petition, and upon which the cause was heard, contains these assignments of negligence: (1) Failure by defendant's agent to avoid the accident after he saw, or by the, exercise of ordinary care could have seen, plaintiff in a position of peril. (2) Failure to sound a horn or give warning to plaintiff of the approach of the automobile. (3) Dangerous and excessive speed. (4) Defendant operating automobile with defective brakes and steering device. (5) That the chauffeur of defendant was unskilled and inexperienced. (6) Failure to give plaintiff the right of way under ordinances.

The answer is a general denial, together with a plea of contributory negligence. Plaintiff's negligence, it is alleged, consisted of a failure to sound signal; driving his motorcycle in excess of 10 miles per hour, in violation of ordinance pleaded; running his motorcycle at excessive rate of speed, and failing to slow down or keep vigilant watch at crossing; and, finally, that plaintiff negligently ran into the curb of North Market street and was thereby injured.

The reply is a general denial.

The evidence on behalf of plaintiff tends to show that at about 9 o'clock of the morning of November 5, 1918, plaintiff was riding a motorcycle westwardly on the north side of North Market street in the city of St. Louis. Newstead avenue is a north and south street intersecting North Market street. When plaintiff approached Newstead avenue, he slowed down his motorcycle to 10 miles per hour, or less, just before reaching the crossing. He sounded his horn and looked north up Newstead avenue, and neither saw nor heard any automobile approaching. He could see "not quite to the alley that is north of North Market street, and he didn't see any automobile coming." It was agreed that the alley was 132 feet north of the north building line of North Market street. He then accelerated the speed of his machine and started to cross Newstead avenue, going directly westwardly on the north side of North Market street. When he reached a point about the middle of Newstead avenue, and while running his cycle at about 10 or 12 miles per hour, he first discovered that defendant's automobile, such as is commonly termed a "taxicab," was about 10 feet north of the north curb line of North Market street, running south on Newstead avenue and bearing down upon him; that the taxicab driver sounded no warning. Plaintiff then, attempting to avoid being struck by the taxicab, turned his motorcycle to the south, or left, which, he says, was the only thing left for him to do, and ran to a point about in line with the west side of Newstead avenue, when his motorcycle was overtaken and struck in the rear by the taxicab, and plaintiff was thrown off of the machine and severely injured. Plaintiff did not actually see the taxicab strike him, but he felt the impact, and there is other evidence from which this inference may be clearly drawn. Witness Keeton substantially corroborated the plaintiff.

Witness Emery, who at that time conducted a grocery store at North Market and Pendleton, one block east of this crossing testified on behalf of plaintiff that he saw the accident; that he first saw plaintiff on North Market street, about 150 feet east of the place of the collision; plaintiff was riding west, and witness was walking east; plaintiff was on the north side of the street, riding at about 10 miles per hour; witness stopped and whistled to plaintiff to stop (they were acquaintances); witness saw plaintiff slacken the speed of his motorcycle, and heard him blow his horn as he approached the crossing; that plaintiff then accelerated his speed and started across Newstead avenue; that, when plaintiff reached nearly the center of Newstead avenue, witness saw defendant's car "loom up at a pretty high rate of speed," saying, further, that the taxicab was running at from 25 to 30 miles per hour; that the taxicab was first swerved to the right, and then to the other side, when same struck plaintiff's motorcycle. From where he then stood, witness could see north on Newstead avenue for at least 20 feet beyond the north curb line of North Market street, and saw the taxicab appear in view after plaintiff had started to cross Newstead avenue; that he watched the accident, and did not see plaintiff run into any curb before the automobile struck him,

Defendant's evidence tended to contradict plaintiff's proof on the material issues. Defendant's chauffeur, who drove the taxicab, testified that plaintiff was running at the rate of from 30 to 35 miles per hour; that witness was running at about 15 miles per hour, and had slowed down; that plaintiff, in attempting to pass the taxicab, swerved into the street and ran along the curb a distance of 100 or 150 feet, where the motorcycle, having a side car, turned over, and the plaintiff fell under same; that the motorcycle and plaintiff skidded for a distance of 30 feet; that the taxicab never struck plaintiff at all.

This, for the present, serves as a sufficient statement of the facts. The case was submitted to the jury on behalf of plaintiff merely upon an instruction upon the measure of damages. No other instructions were asked or given for plaintiff. All of the instructions requested' by defendant were given.

Defendant, at the close of plaintiff's case, and again at the close of the whole case, offered an instruction in the nature of a demurrer to the evidence, which were general in character, which were refused. Defendant did not offer any withdrawal instructions. Accordingly the case was submitted on all the allegations of negligence contained in the petition. It requires but little discussion to show that under this state of the record a case was made for the jury. Torrance v. Pryor (Mo. Sup.) 210 S. W. 430.

There was direct evidence from plaintiff, and from other witnesses, that defendant's agent failed to sound a gong or horn, or other warning, when approaching the intersection of these streets, and though no such duty was incorporated in the act of 1917, which was controlling on the date of the injury, such was the duty under the common law, if the jury believed that the exercise of ordinary care so required. There was evidence from which the jury could reasonably infer that defendant's taxicab was running at an unreasonable, dangerous, and excessive rate of speed, particularized by one witness as "running as at speed of from 25 to 30 miles per hour at the time just prior to the collision." Defendant itself introduced an ordinance of the city of St. Louis, which prohibits a taxicab from running at a greater rate of speed than 10 miles per hour anywhere in the city.

The petition charges defendant's failure to give plaintiff the right of way under the ordinances of the city. The ordinance introduced (section 1280, Wagner's Revised Code of the City of St. Louis 1914) gives vehicles going in an easterly and westerly direction the right of way over vehicles going in a northerly and southerly direction. Plaintiff's evidence is to the effect that plaintiff closely approached the intersection of said street before defendant's taxicab. Under the evidences again with reasonable inferences deducible therefrom, plaintiff clearly made a case under this charge of negligence. We likewise hold that plaintiff made a case for the jury on the humanitarian doctrine.

But defendant complains that it was reversible error on the part of the court to submit the case to the jury merely upon an instruction upon the measure of damages, with no directions whatever as to the theory or grounds of negligence upon which the jury might find a verdict in favor of plaintiff, and cites Eversole v. Railroad, 249 Mo. 523, 155 S. W. 419, Highfill v. City of Independence (Mo. Sup.) 189 S. W. 801, and McDonald v. Const. Co., 183 Mo. App. 415, 166 S. W. 1087, in support of such contention. As we understand the law now to be, there is no duty placed upon plaintiff to request, nor is it the duty of the trial court to give instructions in a civil case. In the case of Wingfield v. Railroad, 257 Mo. loc. cit. 359, 166 S. W. 1037, it is pointed out by Judge Graves, for the court in banc, that while this practice is condemnable, it does not constitute reversible error. See Powell v. Railroad, 255 Mo. loc. cit. 456, 164 S. W. 528.

We next consider defendant's complaint, which charges misconduct of counsel for plaintiff in his closing argument to the jury. During the course of the trial it became an important question as to where plaintiff fell from the motorcycle. Plaintiff and his witnesses contended that he fell about 15 or 20 feet west of the intersection on North Market street. Defendant's chauffeur, on the other hand, claimed that he did not strike the motorcycle, but that plaintiff, in attempting to...