Deitring v. St. Louis Transit Co.

• Decision Date: 07 February 1905
• Citation: 109 Mo. App. 524,85 S.W. 140
• Parties: DEITRING v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

85 S.W. 140

109 Mo. App. 524

DEITRING v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

February 7, 1905.

STREET RAILROADS — INJURIES AT CROSSING — NEGLIGENCE — SPEED LIMIT — "VIGILANT" WATCH ORDINANCE — CONTRIBUTORY NEGLIGENCE — DEMURRER TO EVIDENCE — ADMISSION OF EVIDENCE — INSTRUCTIONS — REVIEW — QUESTIONS NOT RAISED BELOW — RECORD.

1. A person crossing a street on foot at an intersection of streets has a right to the use of the street equal to that of the street railway company.

2. A person crossing a street railway has a right to presume, unless he has knowledge to the contrary, that cars will not be operated at a speed exceeding that limited by the city ordinance.

3. It is negligence per se to operate a street car over a crossing at a speed exceeding that limited by the city ordinance.

4. A person about to cross a street railway track is charged with the duty of looking and listening for approaching cars before stepping on the track.

5. If the position of a person three feet from a street car track when he looked and listened was such that when looking at the end of the approaching car he was unable to discern that it was approaching at a rate of speed exceeding 15 miles an hour, as limited by the city ordinance, and it was apparent that the car was at a sufficient distance to enable him with the exercise of due care to cross the track in safety, he would be justified in relying on the car being operated within the speed limit and with due care.

6. By the direct provision of St. Louis General Ordinances, c. 23, art. 6, § 1760, subd. 4, it is the duty of electric car motormen to "keep a vigilant watch for * * * persons on foot * * * either on the track or moving toward it, and on the first appearance of danger * * * to such person * * * the car should be stopped in the shortest time and space possible."

7. Though a person may have been negligent in attempting to cross a street car track in front of an approaching car, his negligence will not bar recovery for injuries resulting from the negligence of the motorman in not stopping or checking the car.

8. In passing on defendant's demurrer to the evidence, the court should place the most favorable construction possible on plaintiff's theory of the evidence, allowing him, as a presumption, every inference that could be reasonably deducted from the evidence in his behalf.

9. In an action against a street car company for injuries at a street crossing, evidence considered, and held, that a demurrer to the evidence by defendant was properly overruled.

10. It is proper to refuse instructions which ignore important evidence in the case.

11. A person about to cross a street car track is not required to "stop and look and listen"; if he looks and listens it is sufficient.

12. In an action against a street car company for injuries to a person attempting to cross the

track, evidence held to show that the city ordinance limiting the speed of cars to 15 miles an hour on certain streets applied to the street where the accident in suit occurred.

13. The objection that a city ordinance introduced in evidence, limiting the speed of street cars to 15 miles an hour, does not apply to the street where the injuries in question occurred, cannot be raised for the first time in review.

14. Where defendant asked and the court gave instructions on the issues raised by a city ordinance introduced in evidence without objections, defendant cannot contend on review that the ordinance did not apply to the issues in the case.

15. A city ordinance limiting the speed of street cars in certain portions of the city may be introduced in evidence in an action against the street car company, without showing an acceptance by the company of the privileges granted by the ordinance.

16. Instructions which are not incorporated in the abstract on appeal will not be reviewed.

Appeal from Circuit Court, Lincoln County; Houston W. Johnson, Judge.

Action for personal injuries by Herman Deitring against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, Martin & Woolfolk, and Norton, Avery & Young, for appellant. S. N. & S. C. Taylor, W. A. Dudley, and R. L. Sutton, for respondent.

NORTONI, J.

1. The plaintiff instituted this action in the circuit court of the city of St. Louis, praying judgment against the defendant on account of personal injuries sustained by him by reason of alleged negligence of defendant in operating its street cars at an unlawful rate of speed, in violation of the city ordinances. A change of venue was afterwards awarded plaintiff, the case was transferred to the Lincoln county circuit court, and at the October term, 1903, was tried by a jury in said court. The jury returned a verdict awarding plaintiff damages in the sum of $3,300. On this verdict judgment was properly entered, motions for new trial and in arrest were filed in due time, and afterwards overruled by the court. The case comes here for review by appeal.

There are nice questions involved in this record. In order to elucidate the matter, we will set out the material portions of the pleadings and copious excerpts from the testimony.

The petition contains three specifications of negligence: First, the operating of the street car in violation of the 15 mile per hour ordinance; second, that the motorman, by the exercise of reasonable care and diligence, could have averted the injury; third, violation of the vigilant watch ordinance.

Omitting the formal parts, the petition is as follows: "That on or about the 29th day of April, 1902, while plaintiff was walking upon said Utah street, at the intersection of said street and Jefferson avenue, and across defendant's railway tracks, said street and place being a public highway where plaintiff had a perfect right to walk, the agents and servants of the defendant, managing its said cars operated upon said track, carelessly and negligently operated the same at a speed of about 25 miles an hour or upwards, in violation of the city ordinance granting to said defendant the right to operate cars upon said street by electric power, which ordinance prohibits the operating of cars upon said street at said place at a rate exceeding 15 miles per hour; and that in consequence of the violation of said city ordinance by said defendant's agents and servants in so operating said car at the rate of 25 miles per hour or upward, and without fault on the part of plaintiff, said car was caused to strike and injure plaintiff as hereinafter stated. That the car that so struck plaintiff was in charge of a motorman in the employ of said defendant, and said motorman saw, or by the exercise of reasonable care might have seen, plaintiff in imminent danger of being struck by said car a sufficient length of time before he was struck, so that by the exercise of reasonable care he might and could have checked the speed of the car, and so have prevented it from striking and injuring plaintiff as hereinafter stated; but said motorman failed and neglected so to do, and the negligence of defendant's said motorman in this behalf contributed to the injuries of plaintiff herein complained of. That, by the terms of subdivision 4, § 1760, art. 6, c. 23, of the General Ordinance Provisions of the City of St. Louis, in force for many years last past, and still in force, it was provided: `The conductor, motorman, gripman, driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, and especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicle, the car shall be stopped in the shortest time and space possible.' That said defendant, in consideration of obtaining its franchise for operating electric street cars upon said Jefferson avenue, at said point, long before the injuries complained of occurred, had agreed to keep, observe, and be governed by said part of said ordinance above quoted; yet, in violation of said ordinance and its said agreement, said defendant's motorman in charge of and operating its car on the occasion in question failed to keep a vigilant watch for persons on foot moving towards the track, and failed, on the first appearance of danger to plaintiff, to stop the car in the shortest time and space possible. That, as a fact, said motorman might and could, with the appliances and equipage upon said car and at his command, by the exercise of vigilance, have checked the speed or stopped said car after it was apparent that plaintiff was in imminent danger of being injured, and thus have avoided the injury to plaintiff, yet said motorman failed and neglected so to do, and this negligence upon the part of the motorman contributed to the injuries in question to plaintiff. That, in consequence of said several acts of negligence upon the part of the defendant and its agents and servants in operating said motor car, it then and there was caused to strike plaintiff with great force and violence, knocking him down, breaking his left arm, breaking two of his ribs, and causing bruises and contusions on his body and head, injuring his back, causing a concussion and contusion of the brain, and injury to his nervous system, from which injuries he has suffered great bodily pain and mental anguish, and still suffers such bodily pain and mental anguish, and will continue to suffer such bodily pain and mental anguish for the rest of his life."

Omitting the formal parts, the answer was a general denial and a plea of contributory negligence, as follows: "Comes now the defendant in the above-entitled case, and, for answer to the petition of the plaintiff filed herein, denies each and every allegation therein contained. And, for a further answer and defense, defendant says that plaintiff's alleged injuries were caused by his own negligence in going upon or so near a railroad track, on which a car was...