76 S.W. 1050 (Mo.App. 1903), Kolb v. St. Louis Transit Co.

Citation:76 S.W. 1050, 102 Mo.App. 143
Opinion Judge:BLAND, P. J.
Party Name:KOLB, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann and Martin & Woolfolk for appellant. A. R. Taylor for respondent.
Judge Panel:BLAND, P. J. Reyburn and Goode, JJ., concur.
Case Date:November 03, 1903
Court:Court of Appeals of Missouri
 
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Page 1050

76 S.W. 1050 (Mo.App. 1903)

102 Mo.App. 143

KOLB, Respondent,

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1903

Appeal from Lincoln Circuit Court.--Hon. Elliott M. Hughes, Judge.

AFFIRMED.

STATEMENT.

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...

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