Young v. St. Louis Public Service Co.

• Decision Date: 07 March 1933
• Docket Number: No. 22261.,22261.
• Court: Missouri Court of Appeals
• Parties: YOUNG v. ST. LOUIS PUBLIC SERVICE CO.

57 S.W.2d 717

YOUNG v. ST. LOUIS PUBLIC SERVICE CO.

No. 22261.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Appeal from St. Louis Circuit Court; Fred J. Hollmeister, Judge.

"Not to be published in State Reports."

Suit by Leonard Young against the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

T. E. Francis and S. G. Nipper, both of St. Louis, for appellant.

Burt A. Kaemmerer, of St. Louis, for respondent.

BECKER, Presiding Judge.

Plaintiff, in his action for personal injuries alleged to have been sustained when struck by one of defendant's street railway cars, obtained a judgment in the sum of $1,000, and the defendant in due course appeals.

Plaintiff's petition sets out five assignments of negligence. The answer contained a general denial coupled with a plea of contributory negligence.

At the close of plaintiff's case, and again at the close of the entire case, the defendant requested an instruction in the nature of a demurrer, which were overruled. Thereupon the defendant requested separate withdrawal instructions with reference to each of the five assignments of negligence set up in plaintiff's petition, each of which was refused. The plaintiff submitted his case to the jury upon instructions covering two assignments of negligence, namely, as for a violation of the Vigilant Watch Ordinance of the city of St. Louis, and under the humanitarian doctrine.

It is conceded that plaintiff made out a case for the jury under the humanitarian doctrine, but the appellant presents here as its sole assignment of error that upon the record plaintiff was guilty of contributory negligence as a matter of law, and that therefore, the trial court erred in refusing to give and read to the jury defendant's requested instruction D withdrawing from the consideration of the jury the assignment of negligence based upon the Vigilant Watch Ordinance.

Viewing the record in the light most favorable to plaintiff, we find that on April 29, 1929, plaintiff, accompanied by two friends William Baker and Frank Hoelscher, was driving his automobile in a southwardly direction over Newstead avenue in the city of St. Louis, when the left front tire of the automobile punctured and went flat. Plaintiff, after driving the automobile as close to the west curb as possible, brought the automobile to a stop at a point in the middle of the block between Lee and Kossuth avenues. Newstead avenue runs north and south, and the defendant company operates its electric street cars, known as the Taylor avenue division, over two sets of tracks on said Newstead avenue, the cars running northwardly on the east tracks and southwardly on the west tracks. The distance between the west rail of the south-bound street car tracks and the west curb of Newstead avenue, where plaintiff's automobile was parked, was eight or nine feet, and the distance from the fenders and running board on the east side of the automobile and the west rail of the southbound track was some two or three feet. In order to repair the punctured tire, it was necessary to remove the lugs fastening the tire to the wheel. Plaintiff, to remove the lugs from the wheel, had to stoop down directly opposite and facing the wheel, and while in this position the rear portion of plaintiff's body extended over the west rail of defendant's south-bound tracks. As plaintiff stooped over to begin removing the lugs from the wheel, he looked to the north and saw no street car in sight.

According to plaintiff's own testimony, while he proceeded to remove the lugs, his friend William Baker sat on the east running board of the automobile watching him. After plaintiff had worked on the lugs some two or three minutes, he was knocked down by a south-bound street car of the defendant company. Plaintiff did not see the street car at any time before the accident, and the car, after it struck plaintiff, proceeded on its way without stopping. According to plaintiff's own statement, he did not look north at any time while he was at work removing the lugs.

William Baker testified that he sat upon the east running board of the car watching plaintiff at work on the tire. He did not see the street car at any time before the accident, nor did he hear any gong sounded. Young was working in a stooped position removing the lugs from the wheel, and was facing toward the tire of the machine when the car struck him. The car proceeded without stopping.

Frank Hoelscher testified that, after plaintiff had brought the automobile to a stop because of the punctured tire, he (Hoelscher) went across the street to buy a new inner tube, and, as he was returning, he saw the street car, then some 35 or 40 feet from the automobile, approaching at a speed of about 10 miles an hour; that he did not hear a gong sounded, and that the car did not slow up as it approached, but kept on at the same speed and struck the plaintiff and proceeded on its way. He further testified that, when the car got within 5 or 10 feet of plaintiff, "I hollered."

We address ourselves to the question whether or not plaintiff, upon the record before us, must be held to have been guilty of contributory negligence as a matter of law.

Respondent has cited us Davies v. People's Ry. Co., 67 Mo. App. 598, as an authority that the question of plaintiff's contributory negligence was a question for the jury. That case, however, has been directly overruled by our Supreme Court, 159 Mo. 1, 59 S. W 982, 983, to which the case was certified by our court on the ground that one of the judges was of the...