83 S.W. 995 (Mo.App. 1904), Murray v. St. Louis Transit Company
|Citation:||83 S.W. 995, 108 Mo.App. 501|
|Opinion Judge:||GOODE, J.|
|Party Name:||MURRAY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant|
|Attorney:||Boyle, Priest & Lehmann, Geo. W. Easley and Edward T. Miller for appellant.|
|Case Date:||December 13, 1904|
|Court:||Court of Appeals of Missouri|
Appeal from St. Louis City Circuit Court.--Hon. M. N. Sale, Judge.
[108 Mo.App. 503]
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 [108 Mo.App. 504] 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...
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