Petty v. St. Louis & M. R. R. Co.

Decision Date10 February 1904
Citation78 S.W. 1003,179 Mo. 666
CourtMissouri Supreme Court
PartiesPETTY v. ST. LOUIS & M. R. R. CO.

2. Plaintiff attempted to cross a street railway track at a crossing as the night was growing dark, and as she entered the street on which the car ran she had a plain view in the direction from which the car approached for 1,200 feet. The car was large, and lighted by electricity, and also had a headlight. Plaintiff's wagon was not lighted, and the headlight only lighted up the track for from 50 to 75 feet in front of the car. The car could have been stopped, at the rate of speed at which it was going, within about 75 feet. Held, that since plaintiff could have seen the car and avoided the injury much sooner than the motorman could have seen plaintiff's wagon in a position of danger, plaintiff was not entitled to recover on the ground that by the exercise of ordinary care the motorman might have seen plaintiff's peril in time to have averted the injury.

3. Though the motorman of a street car could have seen plaintiff at the time she drove into the street from a side street when she was 22 feet from the track, and when he was 1,200 feet from the crossing, he was entitled to assume that plaintiff at that time and distance would also see the car, and stop before getting into a position of peril.

4. In an action for injuries at a street railroad crossing, evidence reviewed, and held to show that plaintiff was guilty of contributory negligence as a matter of law.

Appeal from St. Louis Circuit Court; Jno. W. McElhinney, Judge.

Action by Charlotte C. J. Petty against the St. Louis & Meramec River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McKeighan & Watts and Robt. A. Holland, Jr., for appellant. R. L. & John Johnston, for respondent.

MARSHALL, J.

This is an action for $20,000 damages for personal injuries sustained by the plaintiff on November 29, 1899, at the intersection of Longfellow and Plant avenues, in the town of Webster Groves, by reason of a collision between one of defendant's cars and an open wagon in which the plaintiff and her brother were riding. There was a judgment for the plaintiff for $2,000, and defendant appealed.

The negligence charged in the petition is as follows: "Plaintiff alleges as the specific facts constituting the said negligence of defendant that at the time and place of said collision defendant's said electric car was being run by its said agents and employés at a rapid and dangerous rate of speed, on a descending grade; the night was growing dark, but said car carried no headlight; no bell was sounded and no warning of any kind given of the approach of said car until too late to enable plaintiff and her said brother to escape said collision; that defendant's agent and motoneer in charge of said car saw, or by the exercise of ordinary care would have seen, the danger and peril of the plaintiff in time to have stopped or so have checked the speed of said car as to avoid said collision, but failed to either stop or check the speed of said car."

The answer is a general denial and a special plea that the plaintiff and her brother were guilty of contributory negligence.

The case made is this: Longfellow avenue runs east and west, and Plant avenue runs north and south. The defendant has an electric street railroad on Longfellow avenue. The cars run west on the tracks on the north side of the street, and east on the tracks on the south side of the street. From the south track to the south side of Longfellow avenue at Plant avenue it is 22 feet. From Plant avenue, looking westwardly, Longfellow avenue is perfectly straight for a distance of 1,200 feet, and the grade rises 3½ feet to the 100. The plaintiff, her mother, two sisters, and her brother raised vegetables on a farm south of Webster Groves, and she and her brother sold the same to residents of Webster Groves, going into town two or three times a week. On the day of the accident the plaintiff, a woman 23 years of age, and her brother, 2 years younger, were driving north on Plant avenue, in an open wagon, in the evening between dusk and dark. When they reached Longfellow avenue, she and her brother say they stopped with the horse on Longfellow avenue and the wagon just south thereof. They say that while in that position they could see west on Longfellow avenue at least a block. There were no houses on that side of Longfellow avenue, and nothing to obstruct their view for at least 1,200 feet. They say they looked and listened, and could neither see nor hear any car approaching. They then started the horse forward, and when the horse and the fore wheels had gotten across the south track they saw a glimpse of light, and looked, and saw a car right upon them; that the brother grabbed the whip, but before the wagon could clear the track, the car struck the hind wheel of the wagon, and she was thrown out and injured. They say they saw no car, saw no headlight on the car, and heard no bell rung, and heard no noise of an approaching car.

George W. Leming testified for the plaintiff that he lived in Webster, and was engaged in the express business; that he was driving west on Lockwood avenue towards Plant avenue, and when he reached Plant and Lockwood he saw the headlight of the car coming eastwardly from the raise at the Congregational Church (which was 1,200 feet west of Plant avenue), and that he also saw the plaintiff's wagon was coming north on Plant avenue towards Lockwood avenue; that when he got to the culvert the motorman on the electric car was ringing his bell, and he wondered whether he was ringing for him or the other wagon; that "at that time the plaintiff's horse was close to the mouth of Plant avenue." Over the objection of the defendant that he had not shown himself qualified to speak, this witness was permitted to testify that the car was running at the rate of 25 miles an hour, but he said he could not say whether it was running faster or slower than the cars usually ran at that point. He further testified that he saw the headlight burning on the car, and that when he passed Plant avenue the plaintiff's wagon was 15 or 25 steps from Lockwood avenue, and that the car was in the neighborhood of from 50 to 75 feet west of the culvert; that anybody coming into Lockwood avenue could see a car for about 400 or 500 yards, and sometimes even farther than that; that he did not notice any slacking of the speed before the collision; that when the motorman began to ring the gong he kept ringing it. This was all the evidence for the plaintiff outside of the testimony as to the nature and extent of her injuries, as to which the doctors disagreed as to whether they were simple, and not serious, or were grave, and probably permanent. The defendant demurred to the evidence, the court overruled the demurrer, and the defendant excepted.

Daniel R. Fauste testified for the defendant that he was the motorman of the car; that from the Congregational Church, at the top of the slope, until he got three-fourths of the way down the slope, the car ran at a speed of 15 miles an hour, but before the car reached Plant avenue it had slowed down to 8 or 10 miles an hour; that he had no power on going down the slope; that as he went down the slope he sounded the gong, and sounded it more as he approached Plant avenue; that there was a headlight burning on the front of the car; that he did not see the plaintiff's horse and wagon until his car got within about 15 or 20 feet of Plant avenue; that it was dark, and the horse was not over 3 or 4 feet from the track at the time; that he rang his bell loudly, and applied his brakes to stop, and at that time the wagon was driven right rapidly across the track in front of the car; that he applied the brake, and also reversed the current; and that the car ran just its own length, 35 to...

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