75 S.W. 699 (Mo.App. 1902), Moore v. St. Louis Transit Company

Citation:75 S.W. 699, 95 Mo.App. 728
Opinion Judge:BLAND, P. J.
Party Name:MICHAEL MOORE, Appellant, v. ST. LOUIS TRANSIT COMPANY, Respondent
Attorney:J. O. More, T. J. Field and Bert Fenn for appellant. Boyle, Priest & Lehmann and Lon O. Hocker for respondent.
Judge Panel:BLAND, P. J. Judge Barclay concurs. Judge Goode dissents. GOODE
Case Date:August 04, 1902
Court:Court of Appeals of Missouri
 
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Page 699

75 S.W. 699 (Mo.App. 1902)

95 Mo.App. 728

MICHAEL MOORE, Appellant,

v.

ST. LOUIS TRANSIT COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

August 4, 1902

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough, Judge.

REVERSED AND REMANDED, AND CERTIFIED TO THE SUPREME COURT.

STATEMENT OF THE CASE.

The suit is for personal injuries alleged to have been inflicted on plaintiff by being struck by one of the defendant's cars on the twenty-sixth day of September, 1900, at Jefferson avenue in the city of St. Louis. At the close of plaintiff's evidence, the court gave an instruction in the nature of a demurrer thereto, whereupon plaintiff took a nonsuit with leave to move to set the same aside and grant a new trial. His motion was duly filed and overruled, whereupon he perfected his appeal.

A summary of the testimony is as follows: Jefferson avenue runs north and south and in it the defendant has a double-track street railway on which its cars are driven by electric power. Thomas street intersects Jefferson avenue and runs east and west. Plaintiff's residence is on Thomas street, two or three blocks west of Jefferson avenue. Between seven thirty and eight o'clock on the evening of September 26, 1900, plaintiff left his residence and started to go to a grocery store on the east side of Jefferson avenue and across from Thomas street. Plaintiff walked on the north side of Thomas street to Jefferson avenue, when he looked north and saw a street car coming, traveling south one hundred and fifty feet from Thomas street. He then turned and walked diagonally toward the crossing of Jefferson avenue from the south side of Thomas street, and when he had arrived within a few feet of this crossing the car that he had seen coming from the north passed him. He then turned towards the crossing looking straight ahead and towards the south to see if a wagon or car was approaching the crossing from that direction and not seeing any he stepped on to the crossing and after taking two or three steps and arriving at the middle of the west car track, he heard a motorman hollow out, "Get out of there!" He turned his head, saw the car and made a spring to clear the track but was struck by the car and thrown to the east and severely and permanently injured. The car that struck him was coming from the north following the car that had just passed him and in close proximity to it. There was no headlight on the car, no bell was rung and the car was running at a speed of from eighteen to twenty miles per hour. Plaintiff, after the first car had passed him, did not look north and did not stop, but continued on his course across the street, nor did he listen to hear if another car was approaching. He was about four feet from the track and seven or eight feet from the south crossing when the first car passed him and his back was partially turned toward the north until he arrived at the south crossing. His testimony is that he was not anticipating the approach of a second car from the north and gave his attention to the east track to look out for cars coming from the south and for wagons that might be upon the east side of the street; that when the first car passed him he made two or three steps forward and then turned in on the crossing; that he did not stop walking from the time he saw the first car approaching until he was struck by the second one; that at that time of the evening if he had looked he could have seen a car approaching from the north at least a hundred feet; that the car by which plaintiff was struck did not slow down until after it had struck plaintiff and ran about one hundred and fifty feet after he was struck before it was stopped.

Mary E. Foster testified that she saw the plaintiff just as he was going to step across the crossing and she saw another car coming over the street and hollowed at the plaintiff but he did not seem to pay any attention; he was looking the other way. The car kept going and when he got about the middle of the track he was struck. It was bright on the crossing on account of the lamplight. It was not a very dark evening.

The evidence shows that the two cars were running about one hundred and twenty feet apart. It further shows that the hardest kind of an electric car to stop, running at eight miles per hour, could be stopped in from seventy to eighty feet. Plaintiff read in the evidence the ordinance of the city of St. Louis which prohibits a greater rate of speed than eight miles per hour to the street railway cars and also ordinance No. 19738, which requires motormen, gripmen, etc., in charge of a car, to keep a vigilant watch for all vehicles and persons on foot on the track, or moving toward it, and on the first appearance of danger to stop the car in the shortest time and space possible.

Reversed and remanded, and certified to the supreme court.

J. O. More, T. J. Field and Bert Fenn for appellant.

(1) The court erred in sustaining defendant's demurrer to plaintiff's evidence and refusing to submit the case to the jury. Penney v. Railroad, 71 Mo. Mo.App. 577; Klockenbrink v. Railroad, 81 Mo.App. 351; Chamberlain v. Railroad, 133 Mo. 587; McAndrews v. Railroad, 83 Mo.App. 233. (2) Plaintiff, reasonably near and in full view of the track, looked once and thereby complied with the requirements of the law and the question whether he was negligent in stepping upon the track without looking a second time, and if negligent whether his negligence contributed to the proximate cause of the accident, was a question of fact for the jury to decide, in view of all the facts and circumstances of the case as shown in the evidence, and not for the court. Penney v. Railroad, 71 Mo.App. 577; Russell v. Railroad, 70 Mo.App. 88. (3) The evidence offered by plaintiff was amply sufficient for the jury to find that defendant's motorman did see, or by the exercise of ordinary care could have seen, the plaintiff's perilous position in time to avert the accident, and the case should have been submitted to the jury. Lamb v. Railroad, 147 Mo. 171; Railroad v. Griffith, 159 U.S. 603; Railroad v. Converse, 139 U.S. 469. (4) If plaintiff was negligent, his negligence was prior in time, and remote in cause, while the defendant's negligence was subsequent in time, and proximate in the cause of the accident. (5) Under the well-settled law of this State, plaintiff had made a prima facie case, and was entitled to a verdict, and the case should have been left to the jury. (6) As the question of negligence on the part of the defendant was one of fact for the jury to determine under all the circumstances of the case, and under proper instructions from the court, so also the question of whether there was negligence in the plaintiff, which was the proximate cause of the injury, was likewise a question of fact for the jury to determine, under like rule.

Boyle, Priest & Lehmann and Lon O. Hocker for respondent.

(1) The plaintiff's own evidence made out a clear case of contributory negligence, and the instruction offered by defendant was properly given. (2) The plaintiff had no right to assume, in view of the very common occurrence of cars being operated in close proximity, especially in the case of a blockade, by fire or otherwise, that two cars would not be operated close together, and it was his duty to look after the first car had passed him. If he had taken that precaution his injury would not have been sustained. His failure to take that precaution was the proximate cause of his injury. Drake v. Railroad, 51 Mo.App. 562. (3) The evidence introduced did not warrant the finding that the motorman could have stopped after the plaintiff became placed in a position of peril, because, according to his own statement and of all the witnesses, the car was right on him the moment he got on the track. The motorman was warranted in assuming that the plaintiff would not place himself in a position of peril without looking or listening. Boyd v. Railroad, 105 Mo. 371. (4) Under the law of this State for many years, it is the duty of persons when approaching street cars, as well as steam railroad tracks, to look and to listen for approaching cars at points advantageous for them to see or hear them, and to protect themselves against injury. Sharpe v. Railroad, 61 S.W. 829; Hook v. Railroad, 63 S.W. 360; Tanner v. Railroad, 61 S.W. 826. (5) It will not do to say that, inasmuch as the plaintiff looked once, he was exonerated from looking again. After looking the first time he saw a source of danger approaching, which his looking enabled him to avoid. After that danger had passed, it became his duty to again look in order to ascertain whether or not another danger was approaching, which his looking might have enabled him to avoid. His failing to do this was the cause of his injury. Duncan v. Railroad, 46 Mo.App. 198; Henze v. Railroad, 71 Mo. 636; Davies v. Railroad, 159 Mo. 1; Jones v. Barnard, 63 Mo.App. 501; Maxey v. Railroad, 113 Mo. 1; Butts v. Railroad, 98 Mo. 272; Drake v. Railroad, 51 Mo.App. 562. This duty is continuous until the dangerous locality is passed. Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo.App. 501; Moberly v. Railroad, 98 Mo. 183; Drake v. Railroad, 51 Mo.App. 562.

BLAND, P. J. Judge Barclay concurs. Judge Goode dissents.

OPINION

[95 Mo.App. 735] BLAND, P. J.

Was the plaintiff guilty of contributory negligence and if so was such negligence the direct cause of the injury, or was there sufficient evidence to have warranted the court to have sent the case to the jury to determine whether the injury was due to the fault of the plaintiff or to the fault of the defendant, are the questions presented for decision by the record in the case. The trial court having granted a demurrer to the plaintiff's evidence, every...

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