McLain v. St. Louis & Suburban Railway Company
| Decision Date | 31 March 1903 |
| Parties | GRANT McLAIN, Respondent, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court--Hon. Selden P. Spencer Judge.
AFFIRMED.
Judgment affirmed.
Dawson & Garvin and Leonard Wilcox for appellant.
(1) The instructions as for nonsuit should have been given. Van Bach v. Railway, 71 S.W. 358; The Warren, 18 F. 559; The Sunnyside, 91 U.S. 208; The New York, 175 U.S. 205; Taylor v. Railway, 137 Mo. 367; Clark v Railway, 127 Mo. 212; Wilder S. S. Co. v. Low, 112 F. 166; Railway v. Coerver, 112 F. 493; Rider v. Railway, 171 N.Y. 156; and other cases in argument; Watson v. Railway, 133 Mo. 251. (2) Instruction No. 3, on the measure of damages was erroneous in submitting items of damage of which there was no evidence; evidence as to injuries which were not pleaded; in giving the jury a roving commission to allow speculative and conjectural damages and those which were possible merely. White v. Railway, 61 Wis. 541; Fry v. Railway, 45 Iowa 417; Curtis v. Railroad, 18 N.Y. 542; Strohm v. Railroad, 96 N.Y. 306; Bigelow v. Railway, 48 Mo. 373; Bradley v. Railway, 138 Mo. 295, 301; Morris v. Railway, 144 Mo. 500; Nixon v. Railroad, 141 Mo. 440; Evans v. Joplin, 76 Mo. 20.
Jeptha D. Howe, Alphonso Howe and D. D. Holmes for respondent.
(1) Defendant waived the demurrer in the first instance and the court, in passing upon the matter, will consider the whole evidence introduced. Edwards v. Railway, 94 Mo.App. 42; Jennings v. Railway, 112 Mo. 268. (2) This court has judicially determined that "it is a matter of common knowledge that cars running at ordinary speed can be stopped in less than one hundred feet." Stocks v. St. Louis Transit Co., 71 S.W. 130. (3) And a peremptory instruction to find for defendant is permissible only when there is no testimony tending to support the plaintiff's case. Herman v. Larkin, 70 S.W. 907. (4) Failing to obey the ordinance was negligence per se. The plaintiff both alleged and proved the ordinance and its acceptance by defendant. He was not required to prove its acceptance, but he has certainly placed himself within all of the rulings of our appellate courts on this question, and we fail to see why appellant has had the temerity to raise this question at all. Gebhart v. Transit Co., 71 S.W. 448; Edwards v. Railway, 94 Mo.App. 40; Jackson v. Railway, 157 Mo. 621. (5) Appellant complains of the use of the word "may" in the instructions on the measure of damages, and claims that this gave the jury a roving commission. An instruction similar to this has been approved by this court in so late a case as Eberly v. Railway, 70 S.W. 381.
--This is an appeal by defendant from a judgment of the circuit court of the city of St. Louis in favor of plaintiff for the sum of $ 3,700 for personal injuries of a grave and permanent character inflicted on him by a street car of defendant striking a car of the St. Louis Transit Company. The catastrophe occurred about 4 o'clock in the afternoon of January 25, 1902, at the intersection of the double parallel tracks of defendant on Union avenue, extending northwardly and southwardly across Delmar avenue, and the double parallel tracks of the Transit Company on Delmar avenue, running eastwardly and westwardly across Union avenue in the city of St. Louis.
The plaintiff, in the performance of his duties in the employ of the Transit Company, was operating one of its cars as a motorman. The petition charges that the Transit Company had the right of way across the tracks of defendant at Union and Delmar avenues and it was the duty of defendant's servants in charge of its cars to wait before such crossing until the car of the Transit Company had cleared it. That while plaintiff was in charge of a car of the Transit Company and such car was being lawfully propelled eastward on Delmar avenue over the crossing and right of way, defendant's servants in charge of and operating one of its cars over its tracks on Union avenue, carelessly and negligently failed to wait before such crossing until it was cleared by the Transit car and carelessly and negligently so ran defendant's car upon such crossing and tracks of the Transit Company that they caused defendant's car to collide with the car of the Transit Company. That at the time there was in force in the city of St. Louis, an ordinance giving the Transit Company the right of way over such crossing, and the right to cross its east-bound car first over such crossing, and defendant was prohibited from entering upon such crossing while it was in use by the Transit Company, and defendant's servants in charge of its car violated such ordinance by not waiting before such crossing until the Transit Company's car had cleared the crossing, and such violation directly contributed to cause the collision, and defendant, in consideration of its franchise from the city to operate its railway upon such street at such place, had agreed to obey the provisions of the ordinance.
Defendant's answer contained a general denial, and a general plea of contributory negligence, and further charged as specific acts of contributory negligence, that plaintiff so carelessly operated the Transit car as it approached, and went on the crossing that he caused it to collide with defendant's car; that he caused and permitted it to come in contact with and collide with defendant's car, by carelessly and negligently failing and omitting to look and listen for and watch defendant's car, and to use ordinary care to prevent the collision, when by so doing he might have avoided it, that he negligently failed to bring the Transit car to a stop before he ran it on the crossing, that the rules of the Transit Company, binding on plaintiff, provided that motormen should not take any risk in crossing tracks at any point whether the company's cars had the right of way or not, and should be prepared to stop to avoid a collision, but plaintiff negligently and in violation of such rule ran his car on such crossing when there was a risk of a collision and so ran his car without stopping. The record reveals the following state of facts:
Some snow had fallen just prior to the casualty, but how heavily or whether it was then continuing, were controverted. However that may be, at the time stated, a car of the Transit Company approached from the west, moving eastwardly on the south track, a slight down grade, and when about two hundred feet west of Union avenue, its speed was reduced but its movement toward the crossing was continued. At the same time, a car of the Suburban Company drew near Delmar avenue from the south, moving northwardly on the east track and when about one hundred and twenty-five feet south of Delmar avenue, its speed was diminished but its progress towards the crossing continued, until it was about thirty or forty feet from the track of the Transit Company. When the car of the latter started to cross the intersecting tracks of defendant and had gotten partly over, the Suburban car struck the Transit car in front of its rear trucks west of the center of the latter car.
Plaintiff on his own behalf, testified that when he first observed the Suburban car then about two hundred feet from the crossing, with the line of vision between unobstructed, he threw off the power, reducing the speed of his car to a rate, as he drew near Union avenue, not exceeding two miles per hour. That when he first observed the defendant's car, its motorman was nearly a block from the crossing and brought the car he was operating at about half rate of speed till within forty feet of the car of witness, when he further lessened the speed and then witness started his own car across at a speed of about two miles an hour, that he had observed nothing wrong about the Suburban car, and its motorman was operating it in the usual way when about to stop, until the Suburban car had reached within thirty-five or forty feet and the Transit car was on the east track of the Suburban line, when its car shot forward with terrific speed, its motorman disappearing from its front end. Plaintiff, continuing, stated that he then threw half the power on his car at one movement, being all it would stand, in the effort to clear the crossing, as when he saw the Suburban car propelled forward at an increased rate of speed, he believed a collision imminent, and he tried to clear the crossing; that his own car was then moving without the power being on, and if he had reversed his car, it would have rendered it motionless, "paralyzed" for an instant, during which the Suburban car would have struck it in the front part; that he got a fraction over half way across when his car was struck and further personal knowledge of the occurrence on his part terminated by his injury. That his instructions and the custom there were, that the Suburban cars came to a stop, and allowed east and west-bound Transit cars to have the right of way. This witness further stated that he could have stopped his car within eight feet when at the west line of Union avenue, which was about one-hundred feet wide and in the center of which the two parallel tracks of defendant are situated; that from the time he first perceived the motorman on the colliding car, he did not notice him putting the brake on or reversing the Suburban car, but he might have reversed his car without witness observing it, and from the way the Suburban car was drawing near, its motorman had no occasion to stop his car, and up to the time the Suburban car arrived within twenty-five or thirty feet of witness, it was moving at a reasonable rate of speed not exceeding four miles an hour; that its motorman could have easily stopped it. That the ...
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