78 S.W. 1003 (Mo. 1904), Charlotte Petty v. St. Louis & Meramec River Railroad Company

Citation:78 S.W. 1003, 179 Mo. 666
Opinion Judge:MARSHALL, J.
Party Name:CHARLOTTE PETTY v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant
Attorney:McKeighan & Watts and Robert A. Holland, Jr., for appellant. R. L. & John Johnston for respondent.
Case Date:February 10, 1904
Court:Supreme Court of Missouri
 
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78 S.W. 1003 (Mo. 1904)

179 Mo. 666

CHARLOTTE PETTY

v.

ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

February 10, 1904

          Appeal from St. Louis County Circuit Court. -- Hon. Jno. W. McElhinney, Judge.

          Reversed.

         McKeighan & Watts and Robert A. Holland, Jr., for appellant.

         (1) The court erred in refusing the instruction in the nature of a demurrer to the evidence offered by defendant at the close of the plaintiff's evidence in chief and at the close of all the evidence. (a) There was no evidence of any negligence on the part of defendant. (b) Said instruction should have been given because the evidence shows clearly that the plaintiff was guilty of negligence that directly contributed to the accident. And also that her brother, who was acting as her agent, was guilty of negligence. (2) The court erred in giving instruction 2 for plaintiff. Said instruction allowed the plaintiff to recover if the jury believed from the evidence that the motorman, after he saw, or might have seen, the plaintiff in a position of peril, could, by the exercise of ordinary care, have prevented a collision. It is erroneous because there is no evidence upon which to predicate it. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Co., 106 Mo. 594; State v. Brown, 145 Mo. 690; Yarnell v. Railroad, 113 Mo. 570; Waldheir v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572. (3) The court erred in allowing the witness Leming to testify, over the objection of defendant, that the car in question was running at the rate of twenty-five miles an hour. This witness showed no qualification whatever that would allow him to testify as an expert as to the rate at which said car was approaching. Naughton v. Stagg, 4 Mo.App. 271; Thompson v. Ish, 99 Mo. 160; Sater v. Railroad, 44 Mo.App. 488; Hampton v. Massey, 53 Mo.App. 501.

         R. L. & John Johnston for respondent.

         Viewed from any standpoint, the judgment of the trial court should be affirmed. The place of the collision -- a dangerous crossing within the city limits -- called for the utmost care and watchfulness on the part of the motorman. If his headlight was burning, it lighted up the track for full seventy-five feet in advance of the car, and by exercise of proper care he must have seen, or should have seen, the dangerous proximity of respondent's horse and wagon to the car track, in time to have stopped his car and avoided the collision. If the headlight was not burning, he was grossly negligent in running his car at any rate of speed in the dark. It was attempted by appellant to show that certain willows and trees on the southwest corner of Plant avenue might have prevented the motorman from seeing respondent in time to avoid the accident, but this contention will not avail appellant. If the willows or trees stood on appellant's right of way, obstructing the view, it was negligence on the part of appellant to permit them to stand there. If not on the right of way, yet obstructing the view in the approach to the Plant avenue crossing, this would be an additional reason for care and watchfulness on the part of the motorman in approaching that crossing. The evidence in the case utterly fails to show any contributory negligence on the part of respondent, or on the part of her brother, who drove the wagon at the time of the accident. But, on the contrary, it is uncontroverted that both of them stopped and looked up and down the track and listened for a car before starting to drive across the car tracks. Burger v. Railroad, 112 Mo. 238; Hilz v. Railroad, 101 Mo. 36; McPheeters v. Railroad, 45 Mo. 22. From the mass of decisions of this court, upon the questions of negligence and contributory negligence, respondent will only cite: Easly v. Railroad, 113 Mo. 236; Liddy v. Railroad, 40 Mo. 506; Hanlon v. Railroad, 104 Mo. 381.

          OPINION

          [179 Mo. 669] MARSHALL, J.

         This is an action for twenty thousand dollars 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 two thousand dollars, 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 employees 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 [179 Mo. 670] 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 motorneer 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 twenty-two feet. From Plant avenue looking westwardly, Longfellow avenue is perfectly straight for

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a distance of twelve hundred feet, and the grade rises three and a half feet to the hundred. The plaintiff, her mother, two sisters and her brother raised vegetables on a...

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