Ries v. St. Louis Transit Co.

• Decision Date: 25 November 1903
• Citation: 77 S.W. 734,179 Mo. 1
• Parties: RIES v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

77 S.W. 734

179 Mo. 1

RIES v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

STREET RAILROADS — CROSSINGS — INJURIES TO PEDESTRIANS — CONTRIBUTORY NEGLIGENCE — HUMANITARIAN DOCTRINE — TRIAL — WITNESSES — EXAMINATION — FACTS PREVIOUSLY TESTIFIED TO.

1. Where, in an action against a street railway company for the death of a pedestrian at a street crossing certain witnesses not only testified that the motorman could see the deceased, but also testified to all the physical facts necessary to determine how far the motorman could have seen him, and were permitted to make all the corrections they desired in their testimony, it was not error for the court to refuse to permit plaintiff's counsel to again ask the witnesses concerning such facts.

2. Where plaintiff's decedent could have seen an approaching street car, by which he was killed at a street crossing, at all times after starting to cross the street, but attempted to cross in front of the car without looking or paying any attention thereto, he was guilty of such contributory negligence as precluded recovery.

3. Where the negligence of plaintiff's decedent, who was killed by a street car at a crossing, was not only concurrent with that of the motorman, but was contemporaneous and coincident with his injury, no recovery could be had under the humanitarian doctrine.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Pauline Ries, by her guardian, Christopher Haag, against the St. Louis Transit Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

A. R. Taylor and A. L. Hirsch, for appellant. Boyle, Priest & Lehmann and Geo. W. Easley, for respondent.

BRACE, P. J.

This is an action for the recovery of damages for the death of Joseph Ries, husband of the plaintiff, which it is alleged was caused by the negligence of the defendant in operating one of its cars going north on Seventh street. The petition charges that said Ries was on the 30th of March, A. D. 1900, struck, run over, and killed by said car through the negligence of the defendant's servant or agent in charge of the operation of said car, "in this: that he failed to sound the gong or bell upon said car, or to warn said Joseph Ries of its approach, or to stop said car, or to operate the fender of said car so as not to run over him, but instead of so doing carelessly and negligently caused and suffered said car to run upon and over him, thereby causing his death; that said car was at the time, or immediately before it struck said Joseph Ries as aforesaid, running at an unlawful rate of speed; that said defendant was negligent, in that the track was in defective condition, and it carelessly permitted it to remain so." The answer was a general denial and a plea of contributory negligence. No evidence was introduced tending to prove that the track was in a defective condition, that the car was running at an unlawful rate of speed, or that the fender was not operated properly. In support of the other allegations of negligence, two witnesses (Lizzie Reiter and Theresa Laubersheimer) who claimed to have seen the accident and one witness (H. C. Montgomery) who testified as to the distance within which a car could be stopped at the place of the accident were introduced. At the conclusion of the plaintiff's evidence the defendant demurred thereto. The demurrer was sustained. The plaintiff took a nonsuit with leave, in due...