Kolb v. St. Louis Transit Co.
| Decision Date | 03 November 1903 |
| Citation | 76 S.W. 1050,102 Mo.App. 143 |
| Parties | KOLB, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. Elliott M. Hughes, Judge.
Channing avenue, in the city of St. Louis, runs north and south and crosses Lucas avenue, which runs east and west, at right angles. In Lucas avenue the defendant has a double street railway track over which it operates its cars by electric power. Cars traveling east run on the south track. The plaintiff had for ten years been in the moving and packing business in the city of St. Louis. On the first day of June 1900, he was driving his moving van, heavily loaded, north on Channing avenue; when he reached its intersection with Lucas avenue, he drove his team to within six or seven feet of the south rail of the railway track and stopped for an east-bound car to pass.
Plaintiff testified that as soon as the car passed he looked both ways on Lucas avenue but neither saw nor heard a car, and drove ahead; that when the front wheels of his wagon struck the south rail of the railway track he heard a noise, looked west and saw a car in about two hundred feet of him approaching at a rapid rate of speed from the west; that he thought he had time to clear the track before the car reached him and whipped up his horses, but failed to get his wagon across the track in time to avoid a collision; that the hind wheel of his van was struck, the van was broken up, damage was done to his horses, one of them dying of the injury; that his clothing was torn and he was badly and permanently injured.
He further testified that his team was well broken, was easily handled and was under control when he was crossing the track. That the grade on Lucas avenue west of Channing raises about sixty feet to the mile; that he supposed the reason he did not see the car before starting across the tracks was that his view was obstructed by the foliage of shade trees standing on the side of the street where he had stopped.
The evidence of witnesses for the plaintiff, and of one for the defendant, was to the effect that the car was running at a speed of from fifteen to twenty miles per hour; that the car was from two hundred to two hundred and fifty feet west of the crossing when plaintiff's horses were on the south track, and that the car could have been stopped or checked in time to have avoided the collision; that the gong was not sounded and the plaintiff's evidence tends to prove that the motorman in charge of the car made no effort whatever to stop it until he was within fifteen or eighteen feet of the wagon, when it was too late to avoid the collision.
Plaintiff read in evidence the speed ordinance, limiting the speed of street railway cars to eight miles an hour, and what is commonly known as the vigilant-watch ordinance.
On the part of the defendant the evidence tends to show that the car was running at a speed of eight miles per hour; that the plaintiff could have seen the car a block or more west of him had he looked; that without looking or listening he drove his team across the track when the car was so near the crossing that it was impossible to stop it in time to avoid the collision; that the motorman sounded the gong vigorously and continuously from the time he discovered plaintiff near the track to give him warning of the approach of the car and that after plaintiff started across the track he did all in his power to stop the car.
The verdict was for plaintiff, the jury awarding him damages in the sum of $ 2,500 from which plaintiff appealed.
Judgment affirmed.
Boyle Priest & Lehmann and Martin & Woolfolk for appellant.
(1) The plaintiff was guilty of contemporaneous, concurrent contributory negligence, which under the law governing this class of cases, entitled the defendant to a verdict, and defendant's peremptory instruction directing the jury to find a verdict for defendant, requested at the close of the whole of the evidence in the case, should have been given. 1 Thompson Neg. sec. 237; Beach Contrib. Neg. (2 Ed.), secs. 56, 185; Murphy v. Railroad, 153 Mo. 252; Watson v. Railway, 133 Mo. 246; Conrad Grocer Co. v. Railroad, 89 Mo.App. 534; Boyd v. Railroad, 105 Mo. 372; Guenther v. Railroad, 95 Mo. 297; Railway v. Moseley, 57 F. 92; McGrath v. Railroad, 59 N.Y. 468; Spellane v. Railway, 135 Mo. 414; Maxey v. Railway, 113 Mo. 1; Vogg v. Railway, 138 Mo. 172; Schmitt v. Railway, 160 Mo. 43; Schofield v. Railway, 114 U.S. 615; Hook v. Railway, 162 Mo. 569; Claybaugh v. Railway, 56 Mo.App. 630; Kelly v. Union Ry. & Transit Co., 11 Mo.App. 1. (2) The rule requiring the defendant, after discovering plaintiff's negligence, to avoid the injury by the exercise of reasonable care, does not apply or govern where both parties are contemporaneously and actively in fault and injury ensues by their mutual carelessness. 1 Thompson Neg. sec. 237; O'Brien v. McGlinchy, 68 Me. 552; Holmes v. South, 97 Cal. 161. (3) In such cases, unless the doctrine of contributory negligence is abolished, there can be no recovery. The negligence of each is the proximate cause of the injury; the negligence of one just as near the injury as that of the other. The above rule applies when there is prior negligence of the plaintiff and subsequent negligence of the defendant. 1 Thompson Neg., sec. 238; Beach Contrib. Neg. (2 Ed.), sec. 185; Inland & Co. v. Tolson, 139 U.S. 551; Railroad v. Cameron, 43 Neb. 297; Krunzer v. Railroad, 151 Ind. 592; 5 American Neg. Rep., 137; 52 N.E. 220; Neet v. Railroad, 106 Iowa 248; Ford v. Railroad, 106 Iowa 85; Kirtley v. Railroad, 65 F. 386; Atwood v. Railroad, 91 Me. 399. (4) The trial court erred in refusing to give instruction No. 1 requested by the defendant. State v. Austin, 113 Mo. 543. (5) It was error in the court to give plaintiff's instructions 1 and 3, because said instructions told the jury that the defendant had to keep a vigilant watch for vehicles, and on seeing the plaintiff drive on defendant's track to stop said car in the shortest time and space practicable, etc. These instructions impose on defendant an extraordinary and high degree of care and responsibility to strangers, when the law requires only ordinary care. 2 Thompson on Negligence sec. 1379; Beach on Contrib. Neg. (2 Ed.), secs, 179-180. This is well-settled authority in Missouri. (6) The trial court erred in admitting in evidence, on the part of the plaintiff over the objection of the defendant, the ordinance of the city of St. Louis requiring the conductor and motorman to keep a vigilant watch and stop the car in the shortest time and space possible on the first appearance of danger to any one moving toward defendant's track. Sanders v. Railway, 147 Mo. 411; Byington v. Railroad, 147 Mo. 673; Senn v. Railroad, 108 Mo. 152; Holwerson v. Railroad, 157 Mo. 216; St. Louis v. Ins. Co., 107 Mo. 92; Badgley v. St. Louis, 149 Mo. 123.
A. R. Taylor for respondent.
(1) In a late case our supreme court states the proposition thus: "The sum of the adjudicated cases bearing upon the relative rights and duties of street cars and citizens traveling in vehicles is that both have a right to use the street, but that neither has an exclusive (paramount) right." Oates v. Railroad, 168 Mo. l. c. 544. (2) The plaintiff seeing no car near enough to threaten his passage, had a right to proceed to cross the street relying upon the servants of the company obeying the law limiting the speed of the car to 8 miles per hour--and also to assume that the motorman would obey the ordinance which required him to stop the car to avoid collision. This proposition has been settled by the decisions of the Supreme Court in the following cases. Hutchinson v. Railroad, 161 Mo. l. c. 254; Gratiot v. Railroad, 116 Mo. l. c. 454; Sullivan v. Railroad, 117 Mo. l. c. 222; Weller v. Railroad, 164 Mo. l. c. 199. (5) Jurymen may compute the average of their respective individual judgments when trying to arrive at the amount of a verdict without being guilty of misconduct. Jobe v. Weaver, 77 Mo.App. 671.
BLAND, P. J. (after stating the facts as above).
1. Defendant offered a peremptory instruction to find for it. The refusal of the court to grant this instruction is assigned as error. Defendant insists that the evidence and physical facts show that had plaintiff looked west, before attempting to cross the track, he would have seen the car, and that his evidence that he did look and saw no car, should be rejected. It seems to us that there is a great deal of force in this contention. Every witness, both for plaintiff and defendant, who saw the car coming, testified to seeing it before and at the time plaintiff started to drive across the track. Plaintiff, however ascribed his inability to see the car to an obstruction caused by foliage of nearby trees. It is not shown that this obstruction was not present. In this state of evidence the question was one of fact for the jury to say whether plaintiff looked and did not see the car at the time he drove upon the track, or whether without looking he drove upon it, and not for the court to declare as a matter of law that the physical facts show that the plaintiff, without looking, negligently drove upon the track in the face of the approaching car.
2. For the plaintiff the evidence tends to show that the car was running at a prohibited rate of speed to-wit, at from fifteen to twenty miles per hour. This was negligence per se and the reasonable inference from this evidence and from the fact that the car was from two hundred to two hundred and fifty feet away when plaintiff drove on the track, is that had the car been running at a lawful rate of speed plaintiff would have...
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