Schafstette v. St. Louis & M. R. R. Co.

Decision Date01 April 1903
Citation74 S.W. 826,175 Mo. 142
CourtMissouri Supreme Court
PartiesSCHAFSTETTE v. ST. LOUIS & M. R. R. CO.<SMALL><SUP>*</SUP></SMALL>

1. In an action against a street railway company, for injuries, an ex-motorman was asked, as an expert, in what distance "he" could have stopped the car, to which he answered that "it could have been stopped" within a given distance. Held, that the error in the question was cured.

2. As defendant's witnesses testified that the car could have been stopped in two-thirds the distance estimated by plaintiff's witness, and that it was actually stopped in one-third the distance, and this testimony and other evidence adduced fully advised the jury of the distance in which the car could have been stopped by a man or ordinary strength and skill, the error in the question was harmless.

3. A driver is not, as a matter of law, guilty of contributory negligence in turning into a street and driving along a street car track when he notices a car coming in the same direction, 500 feet away.

4. When a driver turns onto a street car track 500 feet ahead of a car, and drives in the same direction as the car is going, and the view of the motorman is unobstructed, it is the motorman's duty to check the car to avoid an accident, and if a collision occurs he is prima facie negligent.

5. Where the evidence showed that defendant's street car operator could have seen plaintiff driving on or close to the track for a distance of 500 feet before reaching the street intersection just beyond which the collision with plaintiff's wagon occurred, the court properly refused an abstractly correct instruction that, though there was much variance in the evidence as to the exact distance from the street intersection to the place of the accident, plaintiff was conclusively bound by his statement that it was only a few feet, as the operator had sufficient time to stop the car and avoid the accident, even if it did occur near the street intersection.

6. An allegation that a street car collided with the rear end of a wagon is supported by evidence that the car collided with a hind wheel of the wagon.

7. While a street car is entitled to the right of way on its own track, this does not warrant the operator of the car in running into a vehicle that happens to be on the track, or excuse his failure to exercise ordinary care to avoid a collision with such vehicle.

8. Where the evidence in an action for negligent injuries showed that defendant's motorman had a clear view of plaintiff on or approaching defendant's track for a distance of 500 feet before he ran into plaintiff's wagon from the rear, the court properly refused to instruct the jury to find for defendant if its motorman could not, by the exercise of ordinary care, have discovered that plaintiff was dangerously near the track in time to have avoided the accident.

9. The instruction was properly refused, even though defendant's showing was that plaintiff ran into defendant's car.

10. Where all the evidence in an action for injuries resulting from a collision of a street car with plaintiff's wagon showed that plaintiff looked for cars before driving on defendant's track, and saw the car 500 feet away, and the court gave instructions fully covering the law as to plaintiff's contributory negligence, an instruction that plaintiff could not recover if he drove onto the track without looking was properly refused.

11. A requested instruction, in an action for negligent injuries against a street railroad, that defendant was entitled to a verdict if the accident was due to the negligence of both parties, was fully covered by an instruction that if plaintiff failed to exercise ordinary care to avoid the accident he could not recover, even though defendant was guilty of negligence.

12. Plaintiff's petition alleged that defendant's car negligently ran into the rear end of his wagon, and the instructions to the jury made his rights to a recovery dependent on a showing that the collision occurred in that manner, and that it was due to defendant's negligence as charged. Defendant claimed that the collision was caused by plaintiff driving into its car, and requested an instruction that it was entitled to a verdict if the jury found in accordance therewith. Held, that the refusal of the instruction was harmless error, as it only stated the converse of the proposition in the given instructions.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Joseph Schafstette against the St. Louis & Meramec River Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McKeighan & Watts and Robt. A. Holland, Jr., for appellant. Wm. L. Bohnenkamp and Wm. R. Gentry, for respondent.

MARSHALL, J.

This is an action to recover damages for personal injuries sustained by the plaintiff on December 7, 1899, on Fair avenue, just south of Green Lea place, in St. Louis, in consequence of a collision between one of defendant's cars and the plaintiff's wagon. The negligence assigned is that while the plaintiff was driving his wagon along Fair avenue, near defendant's tracks, the defendant's servants "did so negligently, carelessly, unskillfully, and wrongfully manage, operate, control, and run at a high and unusual rate of speed one of its south-bound cars along its east track as to cause the same to run against and collide with, and the same did run against and collide with, the rear end of said wagon, in which plaintiff was driving as aforesaid, and that said defendant's servants and agents at the time saw said wagon, or by the exercise of reasonable care might have seen said wagon, and said plaintiff in his perilous position, in time to stop said car before striking or running against said wagon, and knew, or by reasonable care might have known, that its said car could not pass plaintiff's wagon at that point without striking it." The petition also sets out the ordinance of St. Louis which requires the conductor, motorman, gripman, driver, and any other person in charge of a car to keep a vigilant watch for vehicles and persons either on the track or moving towards it, and on the first appearance of danger to stop the car in the shortest time and space possible, and that in consideration of the franchise granted to it by the city the defendant had contracted and agreed to be bound by the ordinance aforesaid. The petition pleads a failure by the defendant to comply with the ordinance. The answer is a general denial and a plea of contributory negligence, in that the "plaintiff drove toward the track on said Fair avenue without first looking and listening to see whether or not a car was approaching on said track, and that said plaintiff, without so looking and listening, drove towards the said track and against an approaching car of the defendant." There was a verdict for the plaintiff for $1.750, and the defendant appealed. The case came to this court because the constitutionality of the nine jury law is called in question. That, however, is now settled by Gabbert v. Railroad (Mo. Sup.) 70 S. W. 891. But the case is nevertheless properly here for adjudication upon the merits.

The case made by the plaintiff is this: Green Lea place runs east and west, and intersects Fair avenue, which runs north and south. The defendant has a street car line on Fair avenue. At the time of the accident only the east track (which is the north-bound track) was completed, and for about four weeks before the accident the defendant's cars had run both ways over the one track. Fair avenue and Green Lea place were unimproved streets. At the southeast corner of said streets there was an iron post about in the line of the sidewalk. The roadway between the post and the track was very narrow, and there was a ditch on the sidewalk, and this, with the fact of the location of the pole on the corner, made it necessary in driving from Green Lea place onto Fair avenue, and going to the south on the east side of Fair avenue, to drive close to the track. The plaintiff was a huckster, and had been in the habit of peddling vegetables in this neighborhood, and knew the conditions existing at the place in question. He drove west on Green Lea place to its intersection with Fair avenue, intending to go south on the east side of Fair avenue. As he reached Fair avenue he first looked to the north on Fair avenue, and saw a car "at the curve," which he says was a block and a half away. He then looked to the south on Fair avenue, and, seeing no car, he turned from Green Lea place onto Fair avenue, towards the south. In doing so he had to drive close to or upon the track, in order to avoid the pole at the corner. He says as soon as he had made the turn at the corner he pulled in towards the east, in order to get away from the track, but when he had gone only 18 to 20 feet the car, coming from north, struck the hind wheel of his wagon, and the collision threw him off the wagon and injured him. One of the plaintiff's witnesses, a lady who saw the accident, says that the plaintiff was trying to get away from the track, and was not on the track or within range of the car more than a minute. Another witness for the plaintiff testified that just before the collision a citizen hailed the car, and he saw the motorman look back to see if he had gotten on the car, and then he looked forward again, and immediately put on the brakes and tried to stop the car, but did not succeed in doing so if time to avert the collision, and that at that time the plaintiff's wagon was fully off of the track, but not out of range of the car.

The citizen who hailed the car testified, however, that he hailed the car when it was from 50 to 100 feet north of Green Lea place, but that the motorman looked straight ahead, and paid no attention to him, and did not stop to let him get on the...

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