Reno v. St. Louis & Suburban Ry. Co.

• Decision Date: 17 March 1904
• Citation: 79 S.W. 464,180 Mo. 469
• Parties: RENO v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 464

180 Mo. 469

RENO v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Reversed.

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

(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence asked by defendant at the close of all the evidence. This instruction should have been given (a) Because the evidence shows conclusively that plaintiff in stepping upon defendant's track, immediately in front of an approaching car, was guilty of contributory negligence. Payne v. Railroad, 136 Mo. 534; Yancey v. Railroad, 93 Mo. 435; Kelsey v. Railroad, 129 Mo. 369; Lenix v. Railroad, 76 Mo. 86; Culbertson v. Railroad, 140 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Maxey v. Railroad, 113 Mo. 1. (b) There was no evidence that after plaintiff was thus guilty of contributory negligence, in stepping upon the track in front of the approaching car, the motorman was guilty of any such conduct as would make defendant liable, in spite of the contributory negligence of plaintiff. Boyd v. Railroad, 105 Mo. 371; Watson v. Railroad, 133 Mo. 246; Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214. (2) The court erred in giving instruction 1 asked by plaintiff; said instruction stating, in effect, that even though the plaintiff was guilty of contributory negligence, she was entitled to recover if the motorman, after seeing her in a position of peril, could have stopped the car, by the exercise of ordinary care, in time to have prevented striking the plaintiff. (a) Because there was no evidence that after the motorman saw the plaintiff in a position of danger he could have stopped the car. There being no evidence that the motorman could have stopped the car, after seeing the plaintiff in a position of danger, it was error to instruct the jury in regard to matters with reference to which there was no testimony. Stone v. Hunt, 114 Mo. 166; State v. Hope, 102 Mo. 110; Evans v. Interstate Co., 106 Mo. 50; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245. (b) Said instruction was further erroneous because it erroneously states that, in spite of the plaintiff's contributory negligence, plaintiff could recover if defendant's motorman could have avoided the injury by the exercise of ordinary care. The concurrent negligence of the plaintiff precludes recovery. Boyd v. Railroad, 105 Mo. 371; Watson v. Railroad, 133 Mo. 246; Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Sharp v. Railroad, 161 Mo. 214.

Wm. M. Kinsey and A. R. Taylor for respondent.

(1) Under the evidence it was a question of fact for the jury to determine whether the plaintiff was guilty of any negligence whatever. She looked both east and west for cars, both before leaving the sidewalk, and whilst passing diagonally on her course to the point of crossing. When struck she was at or near the crossing for pedestrians. She had her attention attracted to the car approaching from the east. It is a physical fact that a person can not look both ways at the same time. The appearance of the east-bound car, according to the plaintiff's evidence, was at tremendous speed, such as she had no reason to anticipate. She knew that the car had no legal right to be run faster than ten miles an hour, to do so the statute was violated. After she looked west and saw no car, endangering her, she had the right to proceed on her way relying upon an obedience by the defendant of the ordinance. She was guilty of no negligence in doing this -- this court has declared this precise proposition of law in Hutchinson v. Railroad, 161 Mo. 254; Eswin v. Railroad, 96 Mo. 290; Kelley v. Railroad, 101 Mo. 77; Jennings v. Railroad, 112 Mo. 276; Gratiot v. Railroad, 116 Mo. 464; Sullivan v. Railroad, 117 Mo. 222. (2) The second contention in appellant's argument is that there was no evidence that the motorman could know or did know of the plaintiff's peril. The motorman testified for the defendant that he saw the plaintiff step down from the sidewalk. The car was 150 feet away then. The woman was going in a northeasterly direction when she stepped into the gutter; he put on his brakes and reduced the speed of his car to two miles an hour. Didn't he see her about to go into peril then? Else, why stop the car? His story is that when he slowed down to two miles an hour the woman stopped. But the plaintiff testified that she didn't stop. Now can evidence be stronger that the motorman saw her peril? Of course, if it was undisputed that the plaintiff stopped and thus induced him to think she would not attempt to cross ahead of the car, the excuse for running her down might have some support. But the jury had all the evidence before them. They drew the inference from the testimony of both sides on this question that the woman did not stop but went forward continuously as she testified, until struck, and in view of the evidence of the motorman that he had his car under control and could have stopped instantly, but did not do so, that he was negligent in running over the plaintiff -- a fair inference from the evidence given on both sides. So, appellant is clearly in error in arguing that there was no evidence that the motorman saw the plaintiff about to go into peril, and in peril, in time to avoid the injury. The evidence of the motorman himself clearly shows that he saw her peril, for he says he virtually stopped the car because of such peril. Coasting Co. v. Tolson, 139 U.S. 558; Martin v. Railroad, 194 Ill. 148; Railroad v. Bodenur, 139 Ill. 605; Railroad v. Ives, 144 U.S. 429; Railroad v. Hellenthal, 31 U.S.C. C. A. 417; Gilbert v. Railroad, 38 U.S.C. C. A. 408; Beach on Cont. Neg. (3 Ed.), sec. 55; Harlan v. Railroad, 65 Mo. 22; Kelley v. Railroad, 75 Mo. 140; Scoville v. Railroad, 81 Mo. 440; Welsh v. Railroad, 81 Mo. 466; Bergman v. Railroad, 88 Mo. 678; Rice v. Railroad, 88 Mo. 392; Frick v. Railroad, 75 Mo. 595; Merry v. Railroad, 88 Mo. 677; Williams v. Railroad, 96 Mo. 281; Fiedler v. Railroad, 107 Mo. 652; Guenther v. Railroad, 108 Mo. 21; Reardon v. Railroad, 114 Mo. 406.

OPINION

ROBINSON, J.

This is an action to recover damages for personal injuries, alleged in the petition to have been received by the plaintiff in consequence of the negligence of the defendant in running its street cars at a high and reckless rate of speed, and in excess of that allowed by the ordinances of the city of St. Louis, and without ringing the bell, sounding the gong, or giving any warning of the cars' approach that ran over and injured plaintiff. The petition further charges that the defendant violated the city ordinances requiring those in control of the movement of the cars to keep a vigilant lookout for persons approaching the track upon which they were being operated, and to stop the cars in the shortest time and space possible upon discovering a person in a dangerous situation.

The answer was a general denial and a plea of contributory negligence. The trial resulted in a verdict for the plaintiff for $ 4,000, from which defendant has appealed, and the case was sent to this court because the constitutionality of the three-fourths jury law was challenged by appellant, and had not, when this case was heard, been passed upon by this court.

This accident occurred about half past nine o'clock on the evening of November 12, 1899, as plaintiff attempted to walk in a diagonal direction across Wash street between Fourteenth and Fifteenth streets, in the city of St. Louis, at a point a short distance west of the west crossing of Atchison Place and Wash street.

As this appeal will be determined upon the question of the propriety of the court's action in submitting plaintiff's case to the consideration of the jury, we will give in full the testimony of the plaintiff, as same is presented in appellant's abstract of the testimony, and as supplemented in respondent's additional abstract of the testimony filed in this cause.

Appellant's abstract of plaintiff's testimony is as follows:

"Witness thinks she is fifty-five years old, but does not remember her age. On the 12th of November, 1899, she lived at the southeast corner of Fifteenth and Wash, had lived there fifteen or sixteen years; on the evening of said date she left her house and went to the Carr Park church on Carr street; she had returned home from church about nine o'clock; afterwards she left the house again to go to the saloon on the northeast corner of Atchison place and Wash street for a glass of beer and some lunch; she had a little bucket in her hand; witness went out of her gate and walked eastwardly on the sidewalk on the south side of Wash street a little distance, then she started to cross the street in a northeastwardly direction; the saloon was on the northeast corner of Wash street and Atchison place; witness started from the south sidewalk towards the saloon in a diagonal direction; witness before she left the sidewalk looked west and looked the other way; witness did not see any car coming from the west and did not hear a bell ring; witness did not know any car was coming from the west before she was struck; when she was struck, witness became unconscious; when witness came to her consciousness, she found her right thigh was broken and her left foot was badly injured; the foot was amputated above the ankle at the hospital; this operation was done by Dr. Nietert; witness remained in the hospital about three weeks and was then taken to her daughter's house in Carondelet, where she has stayed ever since; one rib was also broken and witness's head was cut and her hand was injured; before the accident witness was a pretty...