Wood v. Wells

• Decision Date: 19 March 1925
• Docket Number: 24656
• Parties: WOOD v. WELLS
• Court: Missouri Supreme Court

270 S.W. 332

WOOD v. WELLS

No. 24656

Supreme Court of Missouri, Second Division

March 19, 1925

S Mayner Wallace, of St. Louis, for appellant.

Thomas E. Francis, Chas. W. Bates, and Ernest A. Green, all of St Louis, for respondent.

OPINION

Statement.

RAILEY, C.

On October 28, 1922, plaintiff filed his third amended petition in this cause, which reads as follows:

'The plaintiff, Edward C. Wood, by attorney, states that the defendant, Rolla Wells, above named, is now and at all times herein mentioned was, under orders of the District Court of the United States in and for the Eastern Division of the Eastern Judicial District of Missouri, the duly appointed qualified, and acting receiver of the street cars, tracks, and other properties of United Railways Company of St. Louis, a street railway corporation, and that, as such receiver, at the time hereafter specified, said defendant was in the possession of and was operating said properties, as a common carrier of passengers for hire, in the city of St. Louis and in the county of St. Louis, including the city of Clayton in said county.

'Plaintiff states that on December 17, 1921, while plaintiff was riding north on Pennsylvania avenue, which was and is a much traveled public roadway in said county and city of Clayton, in the automobile, and as the guest, of Herman J. Sternberg, he, the said plaintiff, was severely injured, at the right-angle intersection of said avenue with Wydown boulevard, also a public roadway in said county and city of Clayton, as a result of the negligence and carelessness of said defendant, in this, that the agent or motorman, in the employ of said defendant, then and there operating one of said street cars of said defendant running east on tracks in said Wydown boulevard, operated and propelled said car on and into said avenue at a dangerous and excessive rate of speed, to wit, at a rate exceeding 35 miles per hour, in such manner as caused said car and said automobile to collide, as herein stated, and to demolish said automobile, and to hurl plaintiff from his seat in said automobile through the wind-shield thereof. Plaintiff also states that said defendant also carelessly and negligently failed to give any warning of the approach of said car and carelessly and negligently failed to watch for the said movement of plaintiff or of other persons then using said roadways.

'Plaintiff states that, at said time and place, said Sternberg was driving said automobile toward said tracks along said avenue in a careful and prudent manner and at a rate of speed so as not to endanger same or the property of another or the life or limb of himself or of any other person; that the grade of that part of said avenue, along which said Sternberg was then so driving, was downgrade to said tracks, and that said tracks were unraised, or laid in and under the surface of said intersection; that, at said time, it was after dark, to wit, about 8:30 o'clock at night, and the street and other lights thereabout did not disclose the existence of said tracks to plaintiff or to said Sternberg as they approached the same; that, as they approached said tracks, the view to the direction in which said car was running and coming was further obscured by buildings, fences, trees, and shrubbery to such extent that said car could not readily have been seen or observed until same was very near to said intersection; that plaintiff and said Sternberg were not familiar at the time with said roadways and locality and did not know and were not advised or warned of the fact that defendant's said tracks there crossed said avenue; that, when plaintiff and said Sternberg discovered the said oncoming car, the latter immediately applied the brakes of said automobile and endeavored, with all means at his command, to stop the same and to avoid said injury, but that said roadways were then covered with sleet and ice over which said automobile skidded and slipped ahead nevertheless and collided with said car, at about the center of said car, as said car was passing over said avenue.

'Plaintiff further states that plaintiff's face, head, and throat were thereby cut by flying glass and other wreckage of said collision, and that the cuts thereon were numerous and of divers and sundry kinds and sizes, on and over the whole of his face, head, and throat, and that he lost much blood, but that such cuts have not left a permanent scar or scars except in two places, on plaintiff's throat, below and under his lower jaw, where said scars are permanent; that his whole body was badly bruised; that, in consequence of said injury, he was compelled to endure much pain and suffering, and was confined to his bed in a hospital for one week and thereafter compelled to lose two weeks' additional of time during which he was required to and did incur sundry liabilities, to wit, $ 58 for hospital expenses and $ 94 for medical and surgical treatment; that the clothing worn by plaintiff at the time of said collision was thereby ruined to plaintiff's damage in the sum of $ 75; and that, because of the said time lost by plaintiff from his business in consequence of said injury, he was damaged in the further sum of $ 300.

'Wherefore, plaintiff prays judgment against said defendant for the sum of $ 8,527, as compensatory damages, and for costs.'

The answer to said petition admits that Rolla Wells was appointed receiver of the United Railways Company on April 12, 1919. The remainder of said answer reads as follows:

'And defendant, for his answer to plaintiff's third amended petition filed herein, denies each and every allegation therein contained.

'For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence, in this, to wit: Plaintiff allowed and permitted himself to be driven toward a street railway track and into and in close and dangerous proximity to a moving street car when he saw or heard, or by the exercise of ordinary care could have seen or heard, the moving street car in time to have warned the driver of the automobile and remained away from the street car and thereby have prevented the collision.

'For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence in this, to wit: Plaintiff failed to warn the driver of the automobile when he could have done so, when he knew, or by the exercise of ordinary care could have known, that said driver was not exercising the highest degree of care, in this, to wit, the driver drove toward a street railway track and into and in close and dangerous proximity to a moving street car when he saw or heard, or by the exercise of the highest degree of care could have seen or heard, the moving street car in time to have remained away from the street railway track and away from in close and dangerous proximity to said street car and thereby have prevented the collision.

'Wherefore, having fully answered, this defendant prays to be hence dismissed with his proper costs.'

The reply is a general denial of the allegations contained in said answer.

The case was reached for trial on January 4, 1923, in division 13 of the St. Louis circuit court, before a jury and Hon. Franklin Miller as trial judge. On the following day the pleadings were read and statements of the case were made by counsel for both parties. Counsel for defendant conceded the ownership of the tracks, street car, and the operation thereof by the receiver, as alleged in the petition. Thereupon plaintiff was sworn as a witness in his own behalf, took the stand, was asked if he was the plaintiff in the case, and having answered in the affirmative, counsel for defendant interposed the following:

'The defendant objects to the introduction of any evidence under the petition in this case, because it wholly fails to state facts sufficient to constitute a cause of action against the defendant; not only fails, but goes further and states facts which show, upon the face of the petition, that plaintiff is not entitled to recover in the case. Also, the opening statement as an admission of the attorney for plaintiff shows plaintiff is not entitled to recover in this case.'

Counsel for plaintiff, in his statement of the case to the jury, said:

'The street car was first known to the driver and his guest, Mr. Wood, when they were about 75 feet from the street car tracks, and at that time the street car itself was about 75 feet from the place where the collision occurred. As soon as they discovered that street car, Sternberg shut on his brakes and did everything he could. Of course, the wheels locked and naturally began to skid, because of the slippery condition, and not only began to slide, but the street car gained momentum in sliding over the slick ice --

'Mr. Hardin: What did?

'Mr. Wallace: I mean the automobile gained momentum after the brakes were put on.'

While the court was considering the objections aforesaid, counsel for appellant stated in open court that his client and the driver of the automobile were about 75 feet from the track when they first saw the street car. The automobile ran into the side of the street car.

The court, in disposing of the said objections, sustained the same in the following language:

'The Court: I think that the petition states facts which show that the direct and proximate cause of the collision was the slipping of the automobile down an icy hill, out of control, into the side of the street car. If that is true, then plaintiff cannot recover.'

Thereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. A regular judgment of nonsuit was entered, and in due...