75 S.W. 86 (Mo. 1903), Campbell v. St. Louis & Suburban Railway Company

Citation:75 S.W. 86, 175 Mo. 161
Opinion Judge:VALLIANT, J.
Party Name:CAMPBELL et al. v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
Attorney:McKeighan & Watts and Robert A. Holland, Jr., for appellant. Clinton Rowell, Joseph H. Zumbalen and Selden P. Spencer for respondents.
Judge Panel:VALLIANT, J. Brace, P. J., concurs; Marshall, J., concurs in result; Robinson, J., absent.
Case Date:May 27, 1903
Court:Supreme Court of Missouri
 
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Page 86

75 S.W. 86 (Mo. 1903)

175 Mo. 161

CAMPBELL et al.

v.

ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

May 27, 1903

Appeal from St. Louis County Circuit Court. -- Hon. John W. Booth, Judge.

Reversed and remanded.

McKeighan & Watts and Robert A. Holland, Jr., for appellant.

The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiffs' evidence in chief, and at the close of all the evidence. (a) The evidence of plaintiffs clearly showed that Howard C. Campbell was guilty of negligence that directly contributed to cause his death. Said evidence clearly showed that if said Campbell had looked in a westerly direction as he approached the tracks he could have seen the car at a distance of two hundred feet, even if there were no headlight on the car, and that if he had listened for the approach of the car he could have heard it when it was at least one hundred and thirty-five feet west of Whittier street. The law is well settled that if a person drives upon a street railroad track without looking and listening for approaching cars he is guilty of contributory negligence as a matter of law, and can not recover. Payne v. Railroad, 136 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Kelsey v. Railroad, 129 Mo. 369; Lenix v. Railroad, 76 Mo. 86; Culbertson v. Railroad, 140 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Maxey v. Railroad, 113 Mo. 1. (b) The court erred in not giving said instruction in the nature of a demurrer to the evidence because the plaintiff's own evidence showed that Howard C. Campbell was guilty of contributory negligence as a matter of law. And plaintiffs did not plead or prove that after plaintiffs' son was thus guilty of contributory negligence, the defendant willfully, recklessly or wantonly ran the car into his wagon. Indeed, there was no evidence that after the plaintiffs' son was thus guilty of contributory negligence the motorman could in anywise have avoided the collision. The law is well settled in this State that where the plaintiff in an accident is killed by negligence which directly contributes to his injuries, he can not recover unless he pleads and proves that the defendant, after the negligence on the part of plaintiff had been committed, recklessly and wantonly inflicted injury upon him. Boyd v. Railroad, 105 Mo. 371; Yancey v. Railroad, 93 Mo. 433; Watson v. Railroad, 133 Mo. 246; Daviess v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214.

Clinton Rowell, Joseph H. Zumbalen and Selden P. Spencer for respondents.

(1) The demurrer to the evidence was properly overruled. Kenny v. Railroad, 105 Mo. 270; Lamb v. Railroad, 147 Mo. 171; Gratiot v. Railroad, 116 Mo. 446; Weller v. Railroad, 120 Mo. 635; s. c., 164 Mo. 180; Baker v. Railroad, 122 Mo. 533; Hutchinson v. Railroad, 161 Mo. 246; Drain v. Railroad, 86 Mo. 574; Church v. Railroad, 119 Mo. 203. (2) There was no error in giving plaintiffs' instruction A. Said instruction was based on the fourth clause of section 1275, Revised Ordinances 1892, which defendant had agreed to comply with and observe. Ordinance 19393, sec. 11. (3) It was proper to give plaintiffs' instruction B, based on the tenth clause of section 1275, Revised Ordinances 1892, and to refuse defendant's instruction 9, which declared that there was no liability on defendant for a violation of said ordinance. (a) The book of Revised Ordinances was admissible in evidence. R. S. 1899, sec. 3100; St. Louis v. Foster, 52 Mo. 513; City of Tarkio v. Cook, 120 Mo. 1. (b) It was proved that defendant had accepted said ordinance. Ordinance 19393, sec. 11. (c) The twenty-mile provision of ordinance 15954 is invalid and ineffectual because in conflict and inconsistent with section 1275, Revised Ordinances, and was therefore properly excluded. Charter of St. Louis, art. 3, sec. 26; State v. Clark, 54 Mo. 35; State v. DeBar, 58 Mo. 397. (4) There was ample testimony to justify the court in giving plaintiffs' instruction C. Authorities under point 1. (5) Defendant's sixth, seventh, tenth and eleventh instructions were properly refused. Sullivan v. Railroad, 117 Mo. 214; Weller v. Railroad, 120 Mo. 635; s. c., 164 Mo. 180. (6) It was not error to permit witness Burton to state his opinion as to the speed of the car, judging from the sound it made, since he properly qualified himself to express an opinion.

VALLIANT, J. Brace, P. J., concurs; Marshall, J., concurs in result; Robinson, J., absent.

OPINION

Page 87

[175 Mo. 166] VALLIANT, J.

This is a suit for damages under section 2864, Revised Statutes 1899, for the death of plaintiffs' minor son which they allege was caused by the negligence of the servants of the defendant in running a car on its railway.

Defendant operates a street railway in St. Louis; the accident occurred at a point where defendant's tracks cross Whittier street. At that point defendant's tracks run east and west, and Whittier street north and south. Plaintiff's son, who was sixteen years old, was driving a grocery delivery wagon going south on Whittier street, shortly after six o'clock in the evening of November 3, 1899, when, as he was crossing defendant's south track, the wagon was struck by a car with such violence that he was thrown out and instantly killed.

[175 Mo. 167] The petition states that at that time there was an ordinance of the city which required the servants of defendant in charge of the car to keep a vigilant watch for vehicles and pedestrians either on the track or moving towards it, and on the first appearance of danger to such vehicles or pedestrians to stop the car in the shortest time and space possible, and that such cars after sunset should be provided with signal lights, and no car be run at a greater speed than eight miles an hour; it then states that the servants of defendant so negligently managed the car on this occasion as to cause it to strike the wagon and throw the plaintiffs' son therefrom and kill him. Then the petition specifies four acts as of negligence which it alleges defendant committed, to-wit: that there was no headlight, that the car was running twenty miles an hour, that the man in charge did not keep a vigilant watch and failed to stop the car in the shortest time and space possible on the first appearance of danger to the vehicle and that they failed to ring a bell on approaching the crossing.

The answer was a general denial, and a plea that the plaintiffs' son was negligent in that he drove on defendant's track without looking or listening for an approaching car and thereby contributed to the accident.

Reply, general denial.

The testimony for plaintiffs tended to prove as follows:

Defendant's tracks are laid in an alley that runs east and west between West Bell street on the north and Morgan street on the south. It is an unusually wide alley, being about sixty feet in width, the defendant owning a right of way twenty feet wide through the center. There are two tracks, the north track being used for the west-bound cars and the south track for the cars east bound. Whittier street runs north and south, intersecting the above-named streets, alley and [175 Mo. 168] railroad tracks at right angles. This is in a residence district in the western portion of the city. The next street west of Whittier and parallel to it is Pendleton, the next Newstead and the next Taylor avenue. The railroad tracks are on a straight line and level from Whittier street to Taylor avenue and beyond. There is a roadway in

Page 88

the alley on the north side of the tracks twenty feet wide, and one on the south side twenty-three feet wide. In the angle made by the west line of Whittier street and the north line of the alley is a two-story brick stable. There were telegraph poles along the line of the railroad, one of which was just west of Whittier street. There was an arc light at the intersection of Whittier and West Bell streets, but no light at the crossing of the tracks. The night was dark and foggy. Whittier street was paved with vitrified brick, which pavement extended down to the railroad tracks. A wagon passing over the pavement made considerable noise. The vehicle in which plaintiffs' son was driving was an ordinary grocery delivery wagon, covered at top and sides, except that on each side by the driver's seat, it was open for a space of eighteen inches so that the driver could see to the right and the left as well as to the front. On this occasion he came from the north, driving south on Whittier street, without stopping or slacking his pace, crossed the north track and just as he got on the south track, the wagon was struck by an east-bound car and he was thrown out and instantly killed.

It was not a regular passenger car, but a construction or repair car. It carried no headlight, but there were lights inside, and an incandescent bulb in the hood at the front of the car, with a reflection throwing the light upward, designed to enable the operator to see the wire overhead. The plaintiffs' witnesses variously estimated the speed of the car...

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