De Wolf v. Stix, Baer & Fuller Dry Goods Co.

• Citation: 240 S.W. 1094
• Decision Date: 06 June 1922
• Docket Number: No. 17134.,17134.
• Parties: DE WOLF v. STIX, BAER & FULLER DRY GOODS CO.
• Court: Court of Appeal of Missouri (US)

240 S.W. 1094

DE WOLF v. STIX, BAER & FULLER DRY GOODS CO.

No. 17134.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Rehearing Denied June 6, 1922.

Appeal from St. Louis; Karl Kimmel, Judge.

"Not to be officially published."

Action by Nelson S. De Wolf against the Stilt, Baer & Fuller Dry Goods Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Bryan, Williams & Cave, of St. Louis, for appellant.

Clarence T. Case, Victor J. Miller, and David W. Voyles, all of St. Louis, for respondent.

NIPPER, C.

This is an action brought by plaintiff to recover of defendant on account of damage to plaintiff's automobile, which it is alleged was received in a collision with a truck belonging to defendant at the intersection of Locust street and Chenning avenue, in the city of St. Louis.

The negligence alleged in the petition upon which plaintiff seeks to recover is the failure of the defendant's driver to have any headlight burning on the front end of defendant's truck, failure to give any signal warning of its approach, and failure to slow up or slacken the speed of the truck. The answer was a general denial and a plea of contributory. negligence. Plaintiff recovered, and defendant appeals.

Locust street runs east and west, and Charming avenue north and south, at the point where the accident occurred. Locust street at this point is about 50 feet wide, and Channing avenue not quite so wide. On the evening in question it had been, and was at the time of the accident, "drizzling" rain. It was dark, but not so dark but what an object like a truck or automobile could be seen at a reasonable distance. It is not clearly established whether or not street lights were burning at this intersection. Plaintiff was driving his seven-passenger touring car west on Locust street, with his two sons as the only other occupants. He had his lights burning and his windshield open on account of the drizzle. Plaintiff blew the horn on his car after leaving the cross street one block east of where the accident happened, slowed his car down, and, according to his evidence, was traveling close to the north curb of Locust street, and about 4 or 5 miles per hour, when he was about 25 feet east of Charming avenue. He testified that he could stop his car at that speed in 2 feet, or possibly less.

From his evidence it further appears that; when he had reached the east building line of Channing avenue, and about 8 or 10 feet east of the east curb line of Channing avenue, he heard the rumble and saw the outline of a truck coming south on Charming, 15 or 20 feet north of the north curb line of Locust. This truck was near the center of the street, going south. The truck was traveling at a speed of from 15 to 25 miles per hour, with no lights burning. Plaintiff came to a full stop about 5 feet west of the east curb of Charming avenue. About this time the truck, as it came past the corner, swerved a little to the left, catching the right front spring of plaintiff's automobile with the left rear wheel of the truck, dragged plaintiff's car some distance away, and injured it. There was a man on the seat of the truck besides the...