Davies v. People's Ry. Co.

• Decision Date: 11 December 1900
• Parties: DAVIES v. PEOPLE'S RY. CO.
• Court: Missouri Supreme Court

59 S.W. 982

159 Mo. 1

DAVIES v. PEOPLE'S RY. CO.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

STREET RAILROADS — INJURIES TO PERSON ON TRACK — CONTRIBUTORY NEGLIGENCE — DIRECTING VERDICT.

Plaintiff, while unloading heavy beams from a wagon in the street, was struck by one of defendant's cars, which approached without warning. The wagon stood far enough from the track to permit cars to pass, but plaintiff, in order to raise the beams, was obliged to stand so near the track as to expose himself to the danger of being hit by cars. He stood with his back to the approaching car, and did not hear or see it before it struck him, though for some distance the view of the track was unobstructed. He admitted that while unloading the wagon he had stepped aside to allow two cars to pass, that he had been engaged in the work for some time, and knew that cars were continually passing, and was aware of the danger, and also that the position assumed by him was the most dangerous one. Held, that the court should have directed verdict for defendant on plaintiff's testimony.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Action for injuries by John E. Davies against the People's Railway Company. From a judgment in favor of plaintiff, defendant appealed to the St. Louis court of appeals. On certified facts from such court. Reversed.

M. Kinealy and Jas. R. Kinealy, for appellant. J. M. Holmes, for respondent.

ROBINSON, J.

This case has been certified here by the St. Louis court of appeals, after an opinion written in the cause by that court, for the reason, as expressed therein, that one of the judges thereof is of opinion that its decision is opposed to the decisions of this court in the cases of Maxey v. Railway Co., 113 Mo. 1, 20 S. W. 654, and Vogg v. Railway Co., 36 S. W. 646.

The following is the statement of the case by that court, and the recitation of the facts shown on part of the plaintiff: "The defendant owns and operates a double-track cable street railway on Fourth street in the city of St. Louis. The plaintiff, at the times hereinafter referred to, was employed about the work on a building which was being erected on the west side of Fourth street, just north of Valentine street. Under permission from the city authorities, the contractors had deposited on the street in front of the building large quantities of building materials, leaving just enough space between the east track of defendant's road and the materials for the unloading of wagons. This had been the condition of the street for several months prior to the 3d day of April, 1895. On that day the plaintiff was engaged (at the point indicated) in unloading from a wagon a lot of heavy iron beams, and while doing so he was struck by a car on defendant's road, receiving serious injuries, for which he sues in this action. The averment of negligence in the petition is that `he [plaintiff] was struck by said car wholly and entirely through the fault, carelessness, and gross negligence of the agents, servants, and employes of defendant who were operating the same, who failed to check the speed of said car or to ring the bell, or to in any manner warn plaintiff of the approach of said car, although he was standing with his back to it, and in plain view of the persons engaged in its operation.' The answer contained a general denial, and also a plea of contributory negligence. The plaintiff's evidence tended to prove these facts in addition to those already stated: The plaintiff's duty was to superintend and assist in removing materials from the wagons. At the time he received the injuries he was assisting in unloading some heavy iron beams from a wagon. The wagon was east of the railroad track a sufficient distance to allow cars to pass, its rear end being to the south. The cars on the east track ran north. The iron beams were being removed from the wagon by means of ropes, which were attached to a derrick. In adjusting the ropes, the plaintiff, by use of a lever, prized up the ends of the beams at the rear end of the wagon, and, in other to do this, he was compelled to stand in the rear and slightly to the west of the west hind wheel of the wagon, thus exposing himself to the danger of being struck by a passing car. At the time of the accident the plaintiff was standing with his back to the approaching car, and was prying up the end of a beam, while his assistants were fastening the hoisting apparatus around it. He did not see or hear the car, and the parties in charge of it failed to check its speed, or to ring a bell, or give any warning whatever of its approach. For some distance south...