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

79 S.W. 461

179 Mo. 583

McGAULEY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

STREET RAILWAYS—NEGLIGENCE—PERSONAL INJURIES—COLLISION WITH WAGON—CONTRIBUTORY NEGLIGENCE—EVIDENCE.

1. Where plaintiff drove his wagon on the track of defendant street railway company at a point where he might have driven in the street outside of the track, and, though it was dark and the street was not lighted, continued on the track for a distance of from three blocks

to a quarter of a mile without looking back until a car was within less than a block, he was guilty of contributory negligence, as a matter of law.

2. In an action against a street railway company for personal injuries caused by the collision of defendant's car with plaintiff's wagon as plaintiff was driving along the track ahead of the car, evidence considered, and held not to show, as a matter of law, that defendant's motorman was negligent in not sooner seeing the wagon or sounding the gong.

3. Where, in an action against a street railway company for injuries to plaintiff caused by a car colliding with his wagon, plaintiff was guilty of contributory negligence, as a matter of law, and there was no evidence that the motorman could have seen the wagon sooner, or could have stopped the car in time to avoid the injury, plaintiff was not entitled to have the case submitted to the jury on the theory that he was entitled to recover notwithstanding his contributory negligence.

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.

VALLIANT, J.

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: "I heard a noise behind me, and then I looked back, and the car was right upon me, and I swung out of the track as quick as I could, and the car caught the coupling pole and turned the wagon over and knocked me out. I didn't know just what happened right after that." 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. "Q. After you had started down the street, did you look back at any time to see if the car was coming? A. No, sir; not until I heard this noise. Q. Not until you heard the car, and then it was immediately behind you? A. Yes, sir. * * * Q. When you looked back, how far was that car behind you? A. As close as I could judge, about twenty-five or thirty feet." The motorman, who was plaintiff's witness, said: "In regard to the collision— Well, I left the north end of the route at Calvary, coasting down the grade after starting. I do not know just what distance it would be — When the wagon probably went a quarter (something like that) I seen the wagon probably ten or twelve steps (not more than ten steps), and it was then in darkness. * * * Q. Did you give any signal at the time you first noticed the wagon? A. No, sir. Q. Ring any bell? A. No, sir. * * *" On cross-examination: "Q. Why didn't you sound the gong when you first saw the wagon? A. I didn't really have time in a case like that. Q. You mean that in forty-five to sixty feet you could not sound the gong? A. No; I don't mean that. Q. Well, you say you saw the wagon fifteen or eighteen steps? A. I said steps or feet. I don't mean any more than the distance across this room [presumably referring to the room in which his deposition was being taken]. Q. That would not be over fifteen feet? A. Well, call it fifteen feet. I don't mean any forty-five or fifty feet." 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...