34 S.W. 573 (Mo. 1896), Watson v. Mound City Street Railway Co.

Citation:34 S.W. 573, 133 Mo. 246
Opinion Judge:Macfarlane, J.
Party Name:Watson, Appellant, v. Mound City Street Railway Company
Attorney:J. R. Myers and A. R. Taylor for appellant. Edward S. Robert for respondent.
Case Date:March 10, 1896
Court:Supreme Court of Missouri
 
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Page 573

34 S.W. 573 (Mo. 1896)

133 Mo. 246

Watson, Appellant,

v.

Mound City Street Railway Company

Supreme Court of Missouri, First Division

March 10, 1896

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

J. R. Myers and A. R. Taylor for appellant.

(1) The court erred in sustaining the demurrer to plaintiff's evidence. (2) Even though deceased negligently walked on defendant's railroad in the middle of a block in front of a moving car, if the motorman saw him, or by the exercise of ordinary care might have seen him in time to have stopped his train before reaching him, and failed to do so, defendant is liable. Moore v. Railroad, 126 Mo. 277; Hicks v. Railroad, 124 Mo. 122; Sullivan v. Railroad, 117 Mo. 221; Eichhorn v. Railroad, 32 S.W. 993; O'Mellia v. Railroad, 115 Mo. 205.

Edward S. Robert for respondent.

(1) Plaintiff is limited to the negligence pleaded. Gurley v. Railroad, 93 Mo. 445; Ely v. Railroad, 77 Mo. 34; Price v. Railroad, 72 Mo. 414; Waldhire v. Railroad, 71 Mo. 514; Buffington v. Railroad, 64 Mo. 246. (2) It was the duty of the deceased to look and listen before stepping in front of the approaching train of street cars. Smith v. Railroad, 52 Mo.App. 36; Hickman v. Railroad, 47 Mo.App. 65; Booth on Street Railways, p. 426, sec. 312. (3) First. The motorman had the right to assume that the deceased would not expose himself to danger. Yancey v. Railroad, 93 Mo. 433; Baker v. Railroad, 122 Mo. 595; Boyd v. Railroad, 105 Mo. 371; Smith v. Railroad, 52 Mo.App. 36. Second. And that his sight and hearing were good. Condee v. Railroad, 31 S.W. 1029. Third. Deceased was not in danger until he stepped on the track. Boyd v. Railroad, 105 Mo. 371; Zurfleet v. Railroad, 46 Mo.App. 636. (4) If deceased took his chances on "hurrying around the car," and made a miscalculation, his widow can not recover. Weaver v. Railroad, 60 Mo.App. 207; Booth on Street Railways, p. 425, sec. 311. (5) The rule that plaintiff may recover notwithstanding his negligence, if the defendant, by the exercise of ordinary care, could have prevented the injury after he exposed himself to danger, has no application where a person goes in front of a moving train too near for it to be stopped in time to avert the collision, whether he was seen or not. Prewitt v. Eddy, 115 Mo. 283; Boyd v. Railroad, 105 Mo. 371. (6) Between crossings the street cars have the right of way. Moore v. Railroad, 126 Mo. 265, and cases at page 275. (7) First. Plaintiff should be nonsuited where contributory negligence appears from either the direct or cross-examination of his own witnesses. Church v. Railroad, 119 Mo. 203; Stone v. Hunt, 94 Mo. 475; Warren v. St. Louis Mer. Ex., 52 Mo.App...

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