Fry v. St. Louis Transit Co.

• Decision Date: 07 March 1905
• Citation: 85 S.W. 960,111 Mo. App. 324
• Parties: FRY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

85 S.W. 960

111 Mo. App. 324

FRY v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

March 7, 1905.

STREET RAILROAD — INJURY TO CHILD — CONTRIBUTORY NEGLIGENCE — NEGLIGENCE — QUESTIONS FOR JURY — PROXIMATE CAUSE — CITY ORDINANCE — SPEED OF CARS — LIMITATION — CONSTRUCTION — EVIDENCE — ADMISSIBILITY.

1. The test of a minor's responsibility for conduct charged to have been negligent is whether he exercised the caution usually displayed by ordinary children of the same age and capacity.

2. In an action against a street railroad for injuries to a child, evidence examined, and whether the child was guilty of contributory negligence held a question for the jury.

3. The negligence of a street railroad in failing to stop a car to allow a passenger to alight does not render it liable for an injury to the passenger by another car, by which he was struck after having alighted in safety, where by standing still he could have avoided the injury from the car that struck him.

4. Where a person stepped from a street car, on which he had been riding as a passenger, to a place of safety between the defendant's parallel tracks, where he could have remained unharmed while a car on the other track passed him, but, after having seen it within five or six feet of him, he attempted to cross the track in front of it, and was struck and injured, any negligence in failing to ring the bell of such car or give warning of its approach is not the proximate cause of the injuries.

5. In an action against a street railroad for injuries, evidence examined, and whether defendant was guilty of negligence held a question for the jury.

6. Where there is a city ordinance limiting the rate of speed of street cars, the ordinance rate may not be lawfully persisted in, regardless of situations which render a slower movement indispensable to the safety of the public.

7. In an action against a street railroad for injuries, where the petition averred the motorman's failure to use any care to control the car which caused the injuries, the averment was broad enough, as an allegation of negligence at common law, to let in evidence concerning excessive speed of the car, especially where no objection was made either to the pleading or the evidence.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by John H. Fry against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehmann and Crawley & Johnson, for appellant. A. R. Taylor, for respondent.

GOODE, J.

This is an action to recover for the loss of the services of the plaintiff's minor son, Walter Fry, and the expense of his medical treatment and nursing. The damages prayed are alleged to have been the result of an accident caused by the negligence of the defendant company's servants in running a trolley car over the boy. The facts of the accident, as narrated by plaintiff's witnesses, were that Walter Fry took passage on a car at Eighteenth and Papin streets, to be carried to Ohio and Chouteau avenues. He traveled along Papin street some distance, and afterwards on Chouteau avenue to its intersection with Ohio, where he intended to, and did, get off. The car slackened speed, but did not stop at his alighting point, which was the east crossing of Ohio avenue. He stepped off the rear steps on the north side, and, as the car was in motion at the time, the impetus he was under bore him several steps forward, or northwest, but he landed safely, and the car went on. Wishing to go south after alighting, when he recovered himself he turned around and "trotted back," as he expressed it, across Chouteau avenue. At that moment another car, which was passing in a direction opposite to the movement of the one he had been traveling on, knocked him down and ran over him. He swore that before he ventured to cross the street, and while he was still north of the north track, he looked both east and west, but saw no car coming, though he admitted his view was unobstructed. After crossing the north track, and while he was between that track and the south one, on which east-bound cars traveled, and along which the car that hurt him came, he again looked, and saw that car five or six feet away. He supposed he could get across the track before it would reach him, and made the attempt, but was caught on the fender, carried a short distance by it, then rolled off, and was run over by the fender and the front wheels. It is in testimony that when he was extricated from under the car he was between the front and the rear wheels of the front truck. One of his arms was so badly crushed that it had to be amputated. Four, or possibly five, acts of negligence are alleged: The first is that the operatives of the car on which the boy traveled, instead of stopping at the Ohio avenue crossing, only slackened speed, forcing him to step off while the car was in motion. The second, third, and fourth specifications of negligence are the failure of the motorman of the car which struck the plaintiff's son to keep vigilant watch for persons on the crossing, or use any effort to control the car or stop it, and avert an injury to the boy, or to give warning by bell or otherwise of the car's approach to the crossing. The fifth act of negligence pleaded, if it be not embraced in those just stated, was noncompliance with the vigilant watch ordinance of the city of St. Louis. We will copy those specifications of negligence as they are averred in the petition: "That plaintiff's said son did alight from said car at or near his said destination, and, after so alighting, started southward across Chouteau avenue, on the west crossing of said avenues, and, whilst said son was so on said crossing, defendant's motorman and conductor in charge of its east-bound car, carelessly and negligently, without keeping any watch for persons on said crossing in danger from said car, and without using any care to control said car or stop it and avert injuries to the plaintiff's son, and without giving any warning by bell or otherwise to plaintiff's son of the approach of said car, caused and suffered said car to run upon and crush and drag said son, and so injured his left arm and shoulder as to necessitate its amputation at or near the shoulder. And for another further assignment of negligence, the plaintiff avers that at the time of said injuries to his son there was in force within the city of St. Louis an ordinance thereof whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot, especially children, either on the track or moving toward it, and upon the first appearance of danger to such child, the car should be stopped within the shortest time and space possible. And plaintiff avers that, at the time of said injuries to his son, defendant's conductor and motorman in charge of said car failed to keep such vigilant watch, and failed to stop said car, and thereby directly contributed to cause said injuries to the plaintiff's son."

The answer set up, besides a general denial, that the injured boy, Walter Fry, carelessly ran on the south track in front of said car which struck him, without looking for approaching cars, when by taking that precaution he could have avoided the collision. Walter testified that he had been going to the grocery store, that was his destination that day, every day for a month, sometimes riding on a car and sometimes walking, and that he had been in the habit of getting off cars at the same Ohio avenue crossing. He testified that he went slowly across the track, neither running nor walking, "but in a kind of a trot," and then said: "Q. While you were trotting across, did you again look west to see if a car was coming before you got on the track? A. Yes. Q. Now, at what point was it that you looked west again before you got on the track — before you got on the south track, when was the last time you looked west? A. I was pretty near on the track when I looked west again. Q. Pretty near on the track? A. Yes. Q. Does that mean that you were on the north track (that is, the west bound track), or that you were between the north track (west-bound track) and the east-bound track? A. I was between the track. I was between the tracks. Q. The next time you looked west after you started across, you were between the two tracks; then you looked west and you saw this car right on you, didn't you? A. Yes. Q. Now, son, why didn't you stop where you were, instead of going right in front of that car? A. I tried to make it across to the other side. Q. The reason you did not stop was, you thought you could get across before it would strike you. That is right, is it not? A. Yes, sir. Q. You saw it, and you saw it within four or five, or five or six, feet of you, and yet you thought you could get across before it would strike you. Isn't that it? A. Yes. The Court: Where were you when you saw it the last time? A. I was between the tracks. Q. What point between the tracks — that is, between the north track and the south track? A. Yes."

There was testimony to prove the car that struck the boy was running 15 or 20 miles an hour, and that no bell was rung as it drew near the crossing. A woman who was in the car, and near the front, swore she saw the boy on the north track, and about to cross, when the car was 150 feet away.

The motorman's testimony coincides with Walter Fry's, and is that Walter was only five or six feet ahead of the car when he first came into the motorman's sight. The latter testified as follows: "Q. Where was the little boy when you first saw him? A. He came out of the back — the rear end — of the west-bound car at this point, and he came across in a little trot, and he stopped about the center of the strip between the tracks. Q. In between the north track and south track he stopped? A. Yes; just for an instant — I was probably five or six feet from him — and then he started ahead again. Q. Now,...