Flach v. Ball , 209 Mo. App. 389 ( 1922 )

This suit was brought by the plaintiff to recover damages for personal injuries sustained by her, alleged to have been negligently caused by being struck by defendant's automobile, while she was walking across Hamilton avenue, in the city of St. Louis, near its intersection with the Hodiamont street car tracks.

The petition charged negligence in operating said automobile in violation of the ordinances of the city of St. Louis in this: (a) Operating said automobile at a rate of speed in excess of ten (10) miles per hour. (b) Failure to give any signal by bell, horn or otherwise, to warn persons approaching or crossing over the intersection or crossing on Hamilton avenue, of the approach of said automobile and (c) failure to stop such automobile and remain at the rear of a southbound Hamilton avenue street car, which was at the time standing to take on and let off passengers on the north side of the Hodiamont street car tracks.

The petition further charged the defendant with failure to exercise due care to keep a lookout and a vigilant watch for persons upon said street approaching the aforesaid intersection thereof, and failure to stop the automobile or slacken its speed or change its course after he saw, or by the exercise of due care could have seen, the plaintiff crossing the street and in dangerous proximity to said automobile.

The answer was a general denial coupled with a plea of contributory negligence on the part of plaintiff as follows:

(1) Failure, before crossing Hamilton avenue, to look and listen for approaching vehicles.

(2) Running in front of a southbound Hamilton avenue street car when her view was so obstructed that she could not see whether any vehicle was approaching, into that portion of Hamilton avenue to the west of said car, and when the drivers of any such vehicle could not see her approaching; and running immediately in front of the defendant's automobile and so close thereto that it was impossible to stop said automobile before striking her.

The reply put in issue the new matter set up in the answer.

At a trial a jury awarded plaintiff a verdict for four thousand dollars; from a judgment on that verdict defendant appeals.

The facts disclosed by the evidence are: Hamilton avenue and the Hodiamont tracks intersect each other at right angles. The Hodiamont street car line runs east and west on a private right-of-way and Hamilton avenue is a public street running north and south. Two street car tracks were maintained on Hamilton avenue and also on the right-of-way of the Hodiamont line. The eastern track, on Hamilton avenue, was used for northbound and the western track for southbound cars. The southern track, on the Hodiamont line, was used for eastbound and the northern track for westbound cars. The northbound cars stopped, to take on and let off passengers, on the south side and the southbound cars on the north side of the Hodiamont tracks, the eastbound cars on the west side and the westbound cars on the east side of the Hamilton avenue tracks. Hamilton avenue, at the point of the accident, is thirty-six feet wide from curb to curb and the Hodiamont right-of-way is thirty feet wide. The width of the tracks is five feet ten inches. The distance between the tracks on the Hamilton avenue and Hodiamont line is four feet eight inches and six feet two inches respectively; and the distance from the west rail of the southbound track, on Hamilton avenue, to the west curb is ten feet and five inches; and the distance from the south rail of the eastbound track, on the Hodiamont line, to the south line of the said right-of-way is about six feet six inches.

The evidence further disclosed that Hamilton avenue, at its intersection with the Hodiamont street car tracks, was a transfer point, much used as a crossing by pedestrians, and that it was customary for passengers, alighting from northbound Hamilton cars and intending to board eastbound Hodiamont cars, to cross south of the Hodiamont tracks and north of the south line of Hamilton avenue.

Just prior to the accident plaintiff was a passenger on a northbound Hamilton avenue car. She intended to board an eastbound Hodiamont car at the intersection of Hamilton and the Hodiamont tracks. When the northbound Hamilton car reached said intersection it stopped on the south side of the Hodiamont tracks, and as plaintiff alighted from the front platform thereof, she observed a southbound Hamilton car standing on the north side of the Hodiamont tracks and an eastbound Hodiamont car standing on the west side of the Hamilton avenue tracks. She further observed that these cars had stopped for the purpose of taking on and letting off passengers and that Hamilton avenue between these three standing cars was free of vehicles. Thus noticing the situation before her (and intending to take the eastbound Hodiamont car) plaintiff passed immediately around the front end of the northbound car and hurridly walked west, and about four feet south of the Hodiamont tracks, in front of the southbound car, and had reached a point somewhere between the west rail of the southbound track and the west curb of Hamilton avenue when she was struck and seriously injured by defendant's automobile, which was being driven southwardly.

There was evidence to prove that the automobile, at the time of the accident, was being operated in excess of the ordinance speed and was proceeding, according to some witnesses, at a rate of speed as high as thirty-five miles per hour. There was also evidence tending to show that said automobile ran past the southbound Hamilton car while it was standing at the regular stopping place, for the purpose of taking on and letting off passengers; and that no signal of any kind was given by the chauffeur before or as it crossed the Hodiamont tracks. All the evidence was that the southbound car had stopped on the north side of the Hodiamont tracks, for the purpose of taking on or letting off passengers; the issue as to that car was whether or not the automobile was driven past it while it remained standing as aforesaid.

At the close of the whole case the defendant offered, and the court refused to give, an instruction in the nature of a demurrer to the evidence. Defendant contends that this instruction should have been given, for the reason that the plaintiff was herself guilty of contributory negligence as a matter of law.

At the trial plaintiff testified that at the time she started to cross the track in front of the northbound and southbound car she noticed the southbound car standing and supposed that the coast was clear, because she knew the city ordinance required vehicles to remain at the rear of a street car, which had stopped to take on or let off passengers, and to remain standing until such street car resumed motion; that she did not know when the southbound car started but that she was certain it did not start before she got to the southbound track; and that she did not look to the north or to the south after she started across but looked west in the direction of the eastbound Hodiamont street car.

Counsel for defendant contend that assuming it to be true that plaintiff saw the southbound car standing, and knew no vehicles should pass it, yet this did not excuse her from looking to see if and when the southbound car started; that the duty was imposed upon her, before crossing the southbound street car track, in the exercise of ordinary care for her own safety, to again look and see where the southbound car was and whether she could still cross its track with safety, that having failed to do so, she was guilty of negligence as a matter of law.

Viewing the evidence, as we must, in a light most favorable to plaintiff and admitting as true every fact and inference that may be reasonably deduced therefrom, we cannot hold, as a matter of law, that plaintiff was guilty of contributory negligence.

It will be noted that there was evidence to the effect that the southbound car remained standing at the time plaintiff was struck by the automobile, and that the automobile, in violation of the city ordinance, was driven past the standing car at a high rate of speed. It will be further noted that plaintiff when she started to cross the track, in front of the northbound and southbound car, saw the southbound car standing about six feet north of the Hodiamont tracks. She knew that the distance she had to travel to cross the southbound track was about fifteen feet and that the southbound car had to travel, after it resumed motion, about twenty-seven feet before it could reach the line of travel she intended to take; she also presumed that no southbound vehicles would be driven passed the southbound street car while said car remained standing, but that all such vehicles would remain at the rear of said street car until such car had resumed motion. Thus viewing the situation it cannot be said that her failure to look again at the southbound car, before crossing the southbound car track, was contributory negligence as a matter of law.

According to plaintiff's evidence she was not endangered by the southbound car. She had safely crossed the car tracks and would have had ample time to cross the street in perfect safety, if defendant had observed the city ordinances, as she had only about twenty-five feet to travel while the automobile (if standing at the rear of the southbound car) had to start and proceed about seventy feet to reach her line of travel. Under the circumstances plaintiff had the right to presume that one driving an automobile would observe the city ordinance by remaining at the rear of the southbound car until such car had resumed motion.

We hold that the question of defendant's negligence was one for the jury. [Carradine v. Ford, 195 Mo. App. 701, 187 S.W. 285; Bongner v. Ziegenhein, 165 Mo. App. 330, 147 S.W. 1112; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14; Cool v. Peterson, 189 Mo. App. 717, 175 S.W. 244; Moffatt v. Link, 229 S.W. 836; Ginter v. O'Donoghue, 179 S.W. 732 (not officially reported); Meenach v. Crawford, 187 S.W. 879 (not officially reported.)]

At the trial one L.J. Caldwell testified, on behalf of the defendant, that he was the motorman of the southbound Hamilton car and that he had started this car as plaintiff was coming around the front end of the northbound Hamilton car. On cross-examination, counsel for plaintiff, with a view to contradict and impeach this witness, interrogated him regarding a written statement he had made a few days after the accident detailing his version of the occurrence. Defendant then offered to prove that this witness had testified after the date of the written statement, in the court of criminal correction, to the same effect as he testified upon the trial. Upon objection made, the court refused to allow the defendant to introduce said testimony. Defendant urges that this action of the court was error.

It does not appear from the record before us that the written statement was introduced in evidence, or that the matters therein contained were inconsistent with the testimony of the witness given at the trial. The witness, therefore, not having been impeached the testimony offered was properly excluded.

Moreover, the testimony of the witness in the court of criminal correction was given subsequently to the date of the written statement and at a time when the motive imputed to him existed. Therefore, granting that the plaintiff proved declarations of the witness at variance with his testimony given at the trial, the confirmatory declarations were not admissible because they were made posterior to the contradictory declarations proved by the plaintiff and subsequent to the time when the supposed interest or corruption of the witness existed.

In Conrad v. Griffey, Howard 11, 52 U.S. l.c. 491, the Supreme Court in passing on this question says:

"In this court it has been held that such evidence is not admissible, if the statements were made subsequent to the contradictions proved on the other side. . . . So far as regards principle, one proper test of the admissibility of such statements is, that they must be made at least under circumstances when no moral influence existed to color or misrepresent them. . . . But when they are made subsequent to other statements of a different character, as here, it is possible, if not probable, that the inducement to make them is for the very purpose of counteracting those first uttered. This impairs their force and credibility, when, if made before the others, they might tend to sustain the subsequent evidence corresponding with them. . . . In this case, then, not having been made prior in time, they do not appear on principle or precedent to be competent." [See, also, Conrad v. Griffey, 14 L.Ed. (U.S.) 37; 41 L.N.S. 906; Stolp v. Blair, 68 III. 541; Legere v. State, 111 Tenn. 368, 77 S.W. 1059; Queener v. Morrow, (1 Cold.) 123 Tenn. — State v. Caddy, 87 N.W. 927; State v. Potty,21 Kan. 54; Robb v. Hackley, 23 Wend. 50.]

Kelly v. Insurance Company, 192 Mo. App. 24, State v. Maggard,250 Mo. 348, and the other cases cited by counsel for defendant, do not uphold him in his contention. While it was held in these cases that where a witness is impeached, by proof of acts and statements inconsistent with his testimony given at the trial, prior statements of the witnesses correspondent with his testimony are admissible for the purpose of rehabilitation, the facts in these cases did not raise the question presented in the instant case, and we find nothing in these cases that is in conflict with the rule laid down by the Supreme Court in Conrad v. Griffey, supra.

It seems clear to us that to allow confirmatory declarations, such as were sought to be given in evidence in the instant case, would have a direct tendency to corrupt the administration of justice. This is well pointed out by the Supreme Court of Tennessee in the case of Queener v. Morrow, supra, where the court says:

"But to allow consistent statements, for the purpose of giving support to the credit of the witness, made after the contradictory representations by which it is sought to impeach him, would be to put it in the power of every unprincipled witness to bolster his credit and perhaps escape the just consequence of his own falsehood and tergiversation."

We rule this point against the defendant.

Defendant's next assignment of error is that the court erred in giving instruction No. 1, which, in part, told the jury:

"If, therefore, you find and believe from the evi- that as the plaintiff . . . was in the act of crossing Hamilton avenue in front of the southbound Hamilton avenue car, which had stoppedat the usual and regular stopping place on the north side of thesuburban car tracks . . . the defendant, through his agent and servant driving his automobile, started defendant's machine before the said street car had resumed motion and ran the same past the said car at a high and dangerous rate of speed, . . . then your verdict must be for the plaintiff."

The italics are ours and indicate that part of the instruction to which objection is made. That the southbound Hamilton avenue car stopped, at the usual and regular stopping place, was not an issue of fact in disputes. All the witnesses testified that it so stopped, and the defendant in his brief admits that "the theory of the defendant was to the effect that the defendant's automobile was proceeding southwardly following the southbound street car and that when the southbound street car came to a stop, defendant's automobile also stopped." It was, therefore, not reversible error to assume in the instruction the existence of a fact over which there was no controversy. The controverted issue of fact was whether the defendant started the automobile before the said street car resumed motion and ran the same past the said car. The instruction submitted that issue to the jury. [Davidson v. Transit Company, 211 Mo. l.c. 356-7, 109 S.W. 583; Phelps v. Zinc Company, 218 Mo. l.c. 580-581, 117 S.W. 705; Sotebier v. Transit Company, 203 Mo. 702, 102 S.W. 651; Taylor v. Iron Company, 133 Mo. l.c. 365, 34 S.W. 581.]

Defendant challenges the correctness of instruction No. 4, given to the jury. Said instruction reads:

"You are instructed that it is the duty of the driver of an automobile upon a street or highway at a place and approaching a place at which pedestrians are accustomed to be or are likely to be upon such street or highway and crossing such street or highway, to keep a vigilant watch and lookout for such persons, and to give a signal or warning of the approach of such machine. If, therefore, you find and believe from the evidence that the plaintiff, at the time she was struck and injured, was at a place upon Hamilton avenue at which pedestrians are accustomed to cross the said Hamilton avenue, and was at the time in the exercise of reasonable care and diligence for her own safety, and that the defendant and his agent and servant in charge of said car in driving the said machine south upon said Hamilton avenue upon said place and approaching the same, failed to keep a vigilant watch for pedestrians at and about the said Hamilton avenue at the place aforesaid and failed to give a signal or warning of the approach of such machine, and that such act, if you so find, was negligence on the part of defendant and his agent and servant, and that as a direct result thereof the plaintiff was run upon and injured, then your verdict should be for the plaintiff."

Section 1338 of the city ordinance of the city of St. Louis introduced in evidence reads as follows:

"Signals by Motor Vehicles When Approaching Crossings, Etc. — Drivers of motor vehicles of all kinds shall, when approaching a crossing or in rounding a curve or corner on a public street, sound their signals in such a way as to give a warning to other vehicles and to pedestrians of their approach."

Defendant contends that the word "crossing" as used in this ordinance means a reguar street crossing; that the place of the accident was not a crossing, as that term is used in the ordinance, and that there was, therefore, no duty on the driver to sound a signal on approaching the place of accident.

In considering the objection to the instruction we need not determine what constitutes a crossing within the meaning of the ordinance.

At the time of the accident there was in effect a statute of this State requiring every person upon approaching a pedestrian, who is upon the traveled part of any highway and not upon a sidewalk, to give a timely signal with his bell, horn or other device for signaling. [Laws of 1911, page 327.]

There was also another statutory law in force at said time, which made it incumbent upon any person operating an automobile upon or across public roads, streets, highways or places much used for travel to use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on or traveling over or across such public roads, streets or places much used for travel. [Laws of 1911, page 330.]

There was, therefore, a duty on the defendant as he approached plaintiff, who was a pedestrian and who was upon the traveled part of a public street, to keep a vigilant watch and lookout for her and give a timely signal of warning. [Aronson v. Ricker, 185 Mo. App. l.c. 531, 172 S.W. 641; Johnson v. Traction Company,176 Mo. App. 174, l.c. 188, 161 S.W. 1193.]

Appellant further urges that the court erred in permitting a witness, over the objection of the defendant, to testify as to the speed at which the automobile was going at the time of the accident. This witness testified that the speed of the machine was twenty miles an hour. It is contended this witness was not qualified to testify as to the speed of the car because he did not have such a view as to enable him to judge therefrom the speed at which it was moving. Witness was one hundred and fifty feet back of the automobile when he saw it strike plaintiff. He testified that he had driven automobiles for many years and often had occasion to observe them and could judge of their speed. The rate of speed at which an automobile is running is not a matter exclusively for expert testimony. As to whether the witness was able to judge the speed from the view he had of it was a matter for the jury; it was for it to weigh his testimony and give it such credit as it deemed it entitled to. We think the ruling of the court was proper. [State v. Watson,216 Mo. 433, 115 S.W. 1011; Aston v. St. Louis Transit Company,105 Mo. App. 231, 79 S.W. 999; Ottofy v. Trust Company,197 Mo. App. 473, 196 S.W. 428.]

Finding no reversible error in the record the Commissioner recommends that the judgment be affirmed.