Murray v. St. Louis Transit Company
| Decision Date | 13 December 1904 |
| Citation | 83 S.W. 995,108 Mo.App. 501 |
| Parties | MURRAY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. M. N. Sale, Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, Geo. W. Easley and Edward T. Miller for appellant.
This plaintiff was hurt by the collision of a trolley car of the defendant company with a United States mail wagon in which he was riding. The accident occurred in the afternoon of November 16, 1900, at the intersection of Montgomery and Ninth streets in the city of St. Louis. The plaintiff, whose business it was to take up mail from mail boxes on the streets of the city, was riding in a one-horse wagon, in prosecution of his duty, on the date named. About half past two in the afternoon he approached Ninth street, driving from the east westwardly along Montgomery street. There was a single street-car track on Ninth street and cars ran thereon only from the south to the north. When the plaintiff got to Ninth street, but before attempting to cross it, he looked south and saw the car that struck him, approaching the intersection of the two streets; but he says, a half block or more away. Supposing he had time to cross Ninth street before the car would reach Montgomery, he started across the former street; but the car struck the wagon, knocking it over with such violence that he was rendered unconscious. Plaintiff testified that he drove slantingly across the street for fear of breaking the wagon's springs and that he let his horse walk over the car track because he thought he had plenty of time. His view of the car was unobstructed. His explanation of the accident is that he misjudged the speed at which the car was running and that it came too swiftly for him to get over the track in safety. The negligence alleged is that the car was running at a reckless and unlawful speed, that the motorman in charge of it saw the plaintiff crossing the track in ample time to avoid striking the wagon, but failed to do so, and omitted the ringing of his gong as he approached the crossing. The last charge of negligence was not relied on at the trial, as the plaintiff himself swore he saw the car before starting across the street and needed no warning of its proximity. The testimony for the defendant differs from the foregoing in attributing the accident to the plaintiff's coming suddenly into the motorman's view when the car was a short distance south of the mail wagon. The motorman's statement was that he had been running very slowly because a furniture van was traveling on the track in front of his car that when this got out of the way near Montgomery street, he increased his speed, and just then the plaintiff appeared a few feet away and drove on the track. The Supreme Court held that this testimony permitted the inference that the plaintiff drove on the track without looking or listening for a car.
Plaintiff had a verdict and defendant appealed.
It is contended the court should have sustained the demurrer to the plaintiff's evidence, there being no testimony to show the speed of the car was unlawful, or that the motorman discovered the plaintiff in a position of peril in time to avoid striking the wagon. From the facts stated, it will be seen that two accounts of the accident were related. According to the plaintiff's version he actually saw the car when it was one hundred and fifty feet or more away, with no obstruction intervening, and drove slowly over the track in a northwesterly direction, supposing he had time to get over before the car would reach him. According to the defendant's version, a furniture wagon interfered with the view between the car and the mail wagon until about the instant of the collision; which resulted, therefore, not from undue speed or the motorman's inattention, or languid efforts to check the car on seeing that an accident threatened, but from the motorman having no previous opportunity to see the wagon and having then no opportunity to avoid hitting it. It will be seen also that two breaches of the defendant's duty to use care for plaintiff's safety were relied on: running the car at a high and reckless speed and failing to stop it as soon as possible on the first appearance of danger to the plaintiff.
The first instruction given for the plaintiff dealt with the averment of reckless speed in the operation of the car as it approached the crossing. It told the jury, in substance, that if they found plaintiff was injured while crossing Ninth street in a careful manner, and after looking and listening for an approaching car before attempting to cross, and if they found the injury was due to the operation of defendant's car at a reckless speed, the verdict should be in his favor. The complaint preferred against that instruction is that evidence was lacking to justify the submission of the question of whether the car was operated at a reckless speed. No witness swore concerning the rate of speed in figures; that is, no witness undertook to say how many miles an hour the car was running; nor was it essential to make proof of that sort. This collision was at the intersection of streets and it often becomes a question for the jury, regardless of any municipal ordinance regulating the speed of cars, whether a car was operated at a careful or a careless velocity when it neared a street crossing. Holden v. Railway Co., 177 Mo. 456, 76 S.W. 973. The plaintiff testified that in driving about St. Louis for forty years he had crossed tracks thousands of times the same distance ahead of cars that he was in this instance and, therefore, thought he had time to get over in safety. There was other testimony which had a tendency to show the car was running at too high speed; and while the evidence on the point was not conclusive one way or the other, it was to be weighed by the jury on the issue of reckless speed. In truth, this proposition was decided, at least impliedly, by the Supreme Court when the case was there on appeal; for the opinion of that court did not censure the submission of the speed issue to the jury. Murray v. Transit Co., 176 Mo. 183, 75 S.W. 611. Excessive speed may be the real and proximate cause of an accident, either by hurrying a car so swiftly toward a person who is crossing a railway track that he is overtaken before he can get across, which otherwise would not happen; or by making it impossible to stop soon enough to avert a collision, which could have been averted had the car's speed been less. And too high speed may have been connected with the collision in question in one or both those ways.
The second instruction given for the plaintiff advised the jury that although they found plaintiff saw the car approaching Montgomery street, but misjudged either its distance or its speed, and drove on the track when it was dangerous to do so it was nevertheless the duty of the motorman to use all practicable means to check the speed of the car and...
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