Priesmeyer v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Citation: 77 S.W. 313,102 Mo. App. 518
• Parties: PRIESMEYER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

77 S.W. 313

102 Mo. App. 518

PRIESMEYER v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

STREET RAILWAYS — INJURY TO PEDESTRIAN — CONTRIBUTORY NEGLIGENCE — BURDEN OF PROOF — EVIDENCE — SUFFICIENCY — INSTRUCTIONS.

1. Where, in an action against a street railway company for injuries to a pedestrian from being struck by defendant's car, there was no proof that plaintiff did not look or listen before attempting to cross the track, it will be presumed that she was in the exercise of due care.

2. It is not negligence as a matter of law for a person to fail to look and listen before attempting to cross a street railway track while a car is over 200 feet distant, with the view of the motorman unobstructed.

3. Where plaintiff, in attempting to cross defendant street railway company's track, fell while the car was over 200 feet distant, and the motorman's view unobstructed, the question of whether he could have seen plaintiff in time to have stopped the car before injuring her was for the jury.

4. In an action for negligence, failure to specifically define reasonable care is not error, where no such definition was requested.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Louisa Priesmeyer against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Thomas B. Harvey, for respondent.

REYBURN, J.

In action for damages for personal injuries, plaintiff's cause of action was substantially set forth as follows: That on the 13th day of April, 1902, as she was crossing the street and car tracks of defendant, the transit company, at intersection of Eleventh and Hebert streets, defendant, by negligently running one of its cars at a high and dangerous rate of speed, and by negligently failing to ring a bell, sound a gong, or give other warning to plaintiff of the approach of its said car, and by negligently failing to keep a vigilant watch for persons upon or crossing the streets and the car tracks of defendant, and by negligently failing to stop its said car after defendant and its servants saw, or by exercise of ordinary care could have seen, the dangerous position of plaintiff on the street near or on its tracks, did negligently cause said car to run over plaintiff; and the hurts inflicted were detailed, damages specified, and judgment therefor prayed.

The answer embodied a general denial and plea of contributory negligence, in that plaintiff went and was in front of a moving car at a time and place when she knew, or by exercise of reasonable care should have known, of the approach of the car, and avoided collision therewith.

Plaintiff, an aged woman, about 71 years old on day of the occurrence, in her testimony evidenced great mental weakness. She stated that she had always been healthy and strong prior to the injury, and was walking down Eleventh street to Hebert street on the afternoon of the day involved, which was Sunday, to visit her sister; that she heard no bell or car, nor did she see the latter, and was struck by the car on Hebert street while crossing going south, and rendered unconscious.

Henry Nagle and Edward S. Fiedler, teamsters, were standing at the southwest corner of Eleventh and Hebert streets, and witnessed the casualty. The first named testified that they had been at the corner about five minutes, and saw Mrs. Priesmeyer as she stepped off the curb at northeast corner of Eleventh and Hebert streets, passing from north to south side of Hebert street on east side of Eleventh street, and she fell as she hit the rail, and the car was then coming round the curve 250 or 300 feet away, going north on Tenth street, making the bend for Hebert street, and running at from 25 to 30 miles per hour; that the time was near half past 6, the day bright and still light, no lights being lit even in the saloon from which they had just emerged; that the motorman made no effort to check or stop the car until he struck the lady; that witness saw the car at the bend or curve, from which there was a clear unobstructed view for...