85 S.W. 140 (Mo.App. 1905), Deitring v. St. Louis Transit Company

Citation:85 S.W. 140, 109 Mo.App. 524
Opinion Judge:NORTONI, J.
Party Name:DEITRING, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann, Martin & Woolfolk and Norton, Avery & Young for appellant. Seneca N. & S. C. Taylor for respondent.
Case Date:February 07, 1905
Court:Court of Appeals of Missouri
 
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Page 140

85 S.W. 140 (Mo.App. 1905)

109 Mo.App. 524

DEITRING, Respondent,

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 7, 1905

Appeal from Lincoln Circuit Court.--Hon. Houston W. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

Boyle, Priest & Lehmann, Martin & Woolfolk and Norton, Avery & Young for appellant.

(1) The defendant offered peremptory instructions at the close of plaintiff's evidence and again at the close of all the evidence that under the evidence plaintiff could not recover, which instruction the court refused. Guyer v. Railway, 174 Mo. 350, 73 S.W. 584. But plaintiff in a very ingenious way seeks by his evidence to relieve himself of the responsibilities thrown upon him by the law under these circumstances. First, he claimed defective hearing; this would not relieve him unless he could bring personal knowledge to the motorman of this defect; in fact, if his hearing was defective as it certainly was if his evidence is to be believed, it should have made him more careful in approaching the place of danger, for he knew of this defect, a thing the defendant did not know. Reames v. Dry Goods Co., 99 Mo.App. 396, 73 S.W. 935. (2) It would be impossible under the doctrine of contributory negligence as defined by the courts of this State, and every other jurisdiction so far as we know, for plaintiff to recover if he went upon that track and was injured without using his senses of sight and hearing. Kelsey v. Railway, 129 Mo. 372, 30 S.W. 339; Holwerson v. Railway, 157 Mo. 216, 57 S.W. 770. (3) If the plaintiff was negligent then, even though we might concede that the defendant's motorman was guilty of running the car at a prohibited rate of speed, the fact would still remain that the plaintiff was likewise guilty of negligence. Concurrent with the negligence of the motorman, and that the injury was the result of the concurrent negligence of both, under such circumstances the law is well-settled that plaintiff is not entitled to recover. Kreis v. Railway, 148 Mo. 321, 49 S.W. 877; Shipton v. Railway, 82 Mo.App. 143; Killion v. Railway, 86 Mo.App. 473. And hundreds of other cases we might refer to in this and other jurisdictions, supporting this doctrine. It seems very clear to us that, when we take this evidence as given and take it in connection with the facts and circumstances surrounding the case, and especially apply the physical facts brought out by the evidence. Weltmer v. Bishop, 174 Mo. 116; Keown v. Railway, 141 Mo. 91, 41 S.W. 926; Weaver v. Railway, 66 Mo.App. 207, that these demurrers should have been sustained by the lower court and that this court should reverse the case, because of the lower court's refusal to so sustain these demurrers.

Seneca N. & S. C. Taylor for respondent.

(1) An electric street railway company operating dangerous machinery at a rapid speed in a populous city is bound to know that pedestrians have an equal right to the use of street crossings; therefore it is the duty of the motorman to be on the lookout and to take all reasonable measures to avoid injuring such persons passing over the tracks at a street crossing, and failure to do so is negligence. Priesmeyer v. Transit Co., 102 Mo.App. 518, 77 S.W. 313; Twelkemeyer v. Transit Co., 102 Mo. 190, 76 S.W. 682; Kolb v. Transit Co., 102 Mo.App. 143, 76 S.W. 1050; Pope v. Railway, 99 Mo. 405, 12 S.W. 891; Winters v. Railway, 99 Mo. 517, 12 S.W. 652; Senn v. Railway, 108 Mo. 142, 18 S.W. 1007; Henry v. Railway, 113 Mo. 525, 21 S.W. 214; Sweeny v. Railway, 150 Mo. 385, 51 S.W. 682; Klockenbrink v. Railway, 172 Mo. 678, 72 S.W. 900; Schafstette v. Railway, 175 Mo. 152, 74 S.W. 826; Riska v. Railway, 180 Mo. 168, 79 S.W. 445; Hays v. Railway, 106 F. 48; Robinson v. Railway, 112 F. 484; Railway v. Whitcomb, 66 F. 915; Lapontey v. Carthage Co., 116 Mich. 514; O'Neil v. Railroad, 129 N.Y. 125; Coke v. Traction Co. (Md.), 31 A. 327; Benjamin v. Railway (Mass.), 35 N.E. 95; Driscol v. Railway (Mass.), 34 N.E. 171; Robyns v. Railway (Mass.), 42 N.E. 334. (2) When a motorman discovers, or by the exercise of reasonable care might have discovered, an old man crossing a railroad track a short distance ahead of his car, upon a public street crossing, it is the duty of the motorman, to have the power by which he propels the car under his control, so as to avoid a collision, if by reasonable care he can do so, and failure of this duty is negligence, making the railway liable. Murray v. Transit Co., 108 Mo.App. 501, 83 S.W. 995; Degel v. Transit Co., 101 Mo.App. 56, 74 S.W. 156; Sepetowski v. Transit Co., 102 Mo.App. 110, 76 S.W. 693; Oates v. Railway, 168 Mo. 544, 68 S.W. 906; Hutchinson v. Railway, 88 Mo.App. 383. (3) If it was negligence, on the part of plaintiff (which we positively deny), in crossing defendant's track, on the occasion in question, still, it was the duty of the motorman after seeing him in danger, or if by the exercise of ordinary care he could have seen him in danger, in time to have prevented the collision to have averted it, if it could be done by the exercise of ordinary care, and failure to do so would be negligence. Cooney v. Elec. Co., 80 Mo.App. 226; Moore v. Transit Co., 95 Mo.App. 729, 75 S.W. 699; Gebhardt v. Transit Co., 97 Mo.App. 380, 71 S.W. 448; Moritz v. Railway, 102 Mo.App. 657, 77 S.W. 477; Grocery Co. v. Railroad, 89 Mo.App. 399; Meyers v. Transit Co., 99 Mo.App. 371, 73 S.W. 379; Dairy Co. v. Transit Co., 98 Mo.App. 20, 71 S.W. 726; Morrissey v. Ferry Co., 43 Mo. 384; Brown v. Railroad, 50 Mo. 466; Meyers v. Railroad, 59 Mo. 231; Matthews v. Elev. Co., 59 Mo. 478; Harland v. Railroad, 60 Mo. 25; Werner v. Railroad, 81 Mo. 368; Bergman v. Railroad, 88 Mo. 685; Dunkman v. Railroad, 95 Mo. 244, 4 S.W. 670; Jennings v. Railroad, 99 Mo. 394, 11 S.W. 999; Henry v. Railroad, 113 Mo. 525, 21 S.W. 214; Morgan v. Railroad, 159 Mo. 262, 60 S.W. 195; Holden v. Railroad, ___ Mo. ___. (4) The violation of the city ordinance as to speed, on the occasion in question was negligence per se, and it directly contributed to plaintiff's injuries. Hutchinson v. Railroad, 161 Mo. 246, 61 S.W. 635, 852; Jackson v. Railroad, 157 Mo. 621, 58 S.W. 32; Prewitt v. Railroad, 134 Mo. 615, 36 S.W. 667; Gratiot v. Railroad, 116 Mo. 450, 21 S.W. 1094; Bluedhorn v. Railroad, 108 Mo. 439, 18 S.W. 1103; Hanlon v. Railroad, 104 Mo. 381, 16 S.W. 233; Murray v. Railroad, 101 Mo. 237, 13 S.W. 817; Kellny v. Railroad, 101 Mo. 68, 13 S.W. 806; Gruebe v. Railroad, 98 Mo. 336, 11 S.W. 736; Schluerty v. Railroad, 96 Mo. 509, 10 S.W. 66; Eswin v. Railroad, 96 Mo. 290, 9 S.W. 577; Merz v. Railroad, 88 Mo. 672; Bowman v. Railroad, 85 Mo. 533; Karle v. Railroad, 55 Mo. 533. Speed ordinances are police regulations and they are binding upon railway companies, whether accepted or not. McAndrews v. Transit Co., 88 Mo.App. 97. (5) Plaintiff had the right to assume that the motorman would obey the law and would not operate a car at a dangerous rate of speed. Weller v. Railroad, 164 Mo. 199, 64 S.W. 141; Sullivan v. Railroad, 117 Mo. 222, 23 S.W. 149; Johnson v. Railroad, 77 Mo. 576; Petty v. Railroad, 18 Mo. 318. (b) Plaintiff had the right to assume that the motorman would have his car under control as was his duty to do, so as to avoid a collision with plaintiff. Richards v. Railroad, 49 S.W. 419 (Ky.) ; Cooper v. Railroad, 8 Am. Neg. Rep. 454; Ludley v. Railroad, 101 Mo. 58; O'Connor v. Railroad, 96 Mo. 220.

OPINION

[109 Mo.App. 530] 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 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 [109 Mo.App. 531] 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 fifteen-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 twenty-ninth 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 twenty-five 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 streets at said place at a rate exceeding fifteen 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 twenty-five miles per hour, or upward, and without fault on the part of plaintiff, said car was caused to strike and injure plaintiff...

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