McGauley v. St. Louis Transit Co.
Decision Date | 10 February 1904 |
Citation | 179 Mo. 583,79 S.W. 461 |
Parties | McGAULEY v. ST. LOUIS TRANSIT CO. |
Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.
Action by Peter McGauley against the St. Louis Transit Company. There was a verdict for defendant, and from an order granting a motion for a new trial it appeals. Reversed.
Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. Kinealy & Kinealy, for respondent.
A wagon, being driven by plaintiff in the track of defendant's street railroad, was struck and turned over by a street car, and the plaintiff was thrown out and injured, and brings this suit for damages. The trial resulted in a verdict for the defendant, the court sustained the plaintiff's motion for a new trial, and the defendant appeals.
The petition states that the plaintiff was driving south in the railroad track after dark, when a car of defendant, going in the same direction, struck the rear end of the coupling pole of the wagon, turned the wagon over, and threw the plaintiff out, in consequence of which he was severely injured; that the motorman in charge of the car failed to ring a bell or give any signal of his approach, or to stop the car, or to take timely steps to stop it; "and that this failure was also due to the bad condition, bad repair, and insufficiency of the car, of the brake, chain, shoe chain, cogwheels, and other brake apparatus." The answer was a general denial and a plea of contributory negligence.
The plaintiff's evidence tended to show as follows: The accident occurred in the northern suburbs, near Calvary Cemetery. It was after dark, and there were no street lights. It was a wagon designed for hauling lumber. It had no bed. It had a long coupling pole, which extended 10 or 12 feet behind the hind wheels. Plaintiff had discharged a load of lumber near the cemetery, and was returning to the city. When he reached the gate at the cemetery, he drove into the railroad track, and followed it for a distance of about three blocks, to the point of the accident. It was the west track, upon which south-bound cars run. The grade is downward from the point at which plaintiff entered the track to the point at which the collision occurred. There are no cross-streets in that vicinity. The car came down the grade at a rapid speed. The plaintiff, hearing the noise of the running car, looked back, and, seeing the danger, immediately attempted to pull out of the track; but, before his wagon got clear, the dashboard of the car struck the projecting end of the coupling pole with such force that the wagon was turned over, and the plaintiff was thrown out and injured. The point of contract between the dashboard and the end of the coupling pole was a little to the west of the center of the dashboard. The plaintiff testified: He further testified that he kept in the track all the way from the gate of the cemetery to the point of collision, and that he did not look back at all until he heard the car immediately behind him. The motorman, who was plaintiff's witness, said: * * *" On cross-examination: This witness testified that there was an electric headlight on the dashboard, but that it was not a bright light, and could have been seen only "a block or so distant." From the gate at the cemetery to the point of the accident the track was straight. He also testified that the brake was in bad condition. On being cross-questioned to specify the...
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