Sluder v. St. Louis Transit Co.

Decision Date01 June 1905
PartiesSLUDER v. ST. LOUIS TRANSIT CO.
CourtMissouri Supreme Court

Scheme & Charter of St. Louis, art. 10, § 1, gives the municipal assembly power to determine by ordinance all questions arising with reference to regulating or controlling street railroads; and by article 3, § 26, the mayor and assembly have power by ordinance to establish, etc., all streets, and to regulate the use thereof. An ordinance of the city of St. Louis provides that the motorman propelling a street car shall keep a vigilant watch for vehicles, and, on the first appearance of danger therefrom, shall stop the car as soon as possible. Held, that such ordinance is a valid exercise of the city's police power, and an acceptance or agreement of a street railroad company is not necessary to give the ordinance binding force.

3. STREET RAILROADS—NEGLIGENCE—BREACH OF ORDINANCE.

A breach of the requirements of the ordinance amounts to negligence, for the results of which a street railroad company is liable to an individual.

4. SAME—DEGREE OF CARE REQUIRED.

The ordinance is not void on the ground that it exacts a higher degree of diligence and care than the common-law rule of ordinary care.

5. SAME—IMPUTED NEGLIGENCE.

Where plaintiff contracted with a livery stable keeper for a carriage to convey him to a certain place, and, when the carriage and driver called for plaintiff, he merely told the driver where he was going, and gave no other directions, any negligence of the driver was not imputable to plaintiff on the theory that the relation of master and servant existed.

6. SAME—CONTRIBUTORY NEGLIGENCE.

Where plaintiff was being driven in a closed carriage, on a dark winter night, by a driver who was not known to plaintiff as a negligent or reckless driver, and the first knowledge that plaintiff had of danger from a street car was when, looking through the window of the carriage, he saw a car rapidly bearing down on him, he was not guilty of contributory negligence.

7. PERSONAL INJURIES—DAMAGES.

In an action for injuries to a physician, which interfered with his practice, it was proper to permit him to testify as to his earnings for that month in the previous year.

8. STREET RAILROADS—COLLISION—EVIDENCE.

In an action for injuries to one whose vehicle was run down by a street car, it was proper to permit him to testify as to the rate of speed at which the car was running; such testimony not being given as an expert.

9. SAME—EVIDENCE AS TO SPEED.

Where, in an action for injuries received by plaintiff in a collision between his vehicle and defendant's street car, the actual physical facts, not controverted by defendant, tended to show an excessive speed of the car, the admission of plaintiff's testimony as to his opinion as to the speed of the car was no ground for a reversal.

Marshall, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Action by Greenfield Sluder against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Morton Jourdan, Sears Lehmann, Geo. W. Easley, and Boyle, Priest & Lehmann, for appellant. Campbell & Thompson, for respondent.

GANTT, J.

This is an action for damages for personal injuries caused by the collision of one of defendant's street cars with a livery carriage in which plaintiff was riding, at the crossing of McPherson avenue by Boyle avenue, on which last-named avenue the defendant company owned and operated a double-track street railway, in the city of St. Louis. Plaintiff recovered judgment in the circuit court for $6,000, and defendant appeals.

The petition, in substance, states that on or about the 27th day of December, 1901, about 7:15 o'clock in the evening of that day, the plaintiff, a physician, was being driven in a hired livery carriage west along McPherson avenue (a street running east and west) at its intersection with Boyle avenue (a street running north and south), in the city of St. Louis, and that the lamps on the said carriage were lighted and burning brightly; that at said time and place, and as such carriage in which plaintiff was riding was crossing defendant's south-bound or western street railway track, one of defendant's cars, propelled by electricity and south bound on said track, with great speed, force, and violence, struck and collided with said carriage, driving plaintiff's right arm into his floating ribs, fracturing the large bone of plaintiff's right forearm, inflicting a body blow on plaintiff's body opposite the solar plexus, rendering plaintiff unconscious, and seriously hurting, bruising, and crushing plaintiff's back and body. "And plaintiff avers that at the time of receiving said injuries there was in force in the city of St. Louis an ordinance known as `Ordinance 19,991,' approved April 3, 1900, which ordinance defendant, long prior to the happening of the accident complained of, accepted, and agreed to be bound by the terms and provisions thereof; that section 1760 of said ordinance, in substance, provides that all street cars after sunset shall be provided with signal lights; that no car shall be drawn at a greater speed than eight miles per hour, and that the conductor, motorman, gripman, driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles, either on the track or moving towards it, and, on the first appearance of danger to such vehicle, shall stop the car in the shortest time and space possible. And plaintiff avers that though, at the time of receiving said injuries aforesaid, it was long past sunset and dark, yet defendant had negligently failed to provide said car with signal lights, or to place a headlight on said car; that defendant's servants, in violation of said provision of said ordinance, were running said car southwardly on Boyle avenue towards McPherson, at the time said injuries were inflicted, and immediately prior thereto, at a careless, negligent, and dangerously high rate of speed, to wit, at a rate of speed far in excess of eight miles per hour; that defendant's servants in charge of said car, in violation of the provisions of said ordinance hereinabove referred to, negligently failed to keep a vigilant watch ahead for vehicles moving toward the track upon which said car was running, and negligently failed to stop or to attempt to stop or check the speed of said car in the shortest time and space possible, when they saw, or by the exercise of ordinary care or diligence could have seen, the vehicle in which plaintiff was riding, in a position of danger, in time to have stopped said car before striking said vehicle, or to have so checked its speed as to have avoided said collision; and, for another and further assignment of negligence, plaintiff states that, at the time and place of receiving said injuries aforesaid, defendant's servants in charge of said car negligently failed to sound the gong or to give warning of said car's approach." The answer of the defendant was a general denial and the following defense: "Second. Further answering, defendant says that whatever injuries plaintiff sustained, if any, were caused by his own negligence, in suffering and permitting the driver of said carriage to drive in front of the approaching car, when, by looking, he might have seen, or by listening he might have heard, said car approaching, and have avoided the said accident." The reply was a general denial.

The facts developed in the trial were, in substance, the following: On the evening of December 27, 1901, the plaintiff was, and for some time prior thereto had been, a practicing physician in St. Louis. On that evening he ordered a carriage from the Palace Livery Company—a livery stable owned by Charles H. Wilcox, in the city. Wilcox sent a two-horse hack or carriage in charge of one of his drivers (Thomas Cavanaugh) to plaintiff's residence, with directions to call for the doctor. When plaintiff got into the carriage he directed the driver to take him to a house on Westminster Place (the third from the corner of Forty-Fourth street), and gave no other orders. The driver drove onto McPherson avenue, which runs east and west, to Boyle avenue, which runs south, beginning at Olive street. The first street south of Olive street crossed by Boyle avenue is West-minster avenue. Boyle avenue is 37 feet wide from curb to curb, and McPherson is 40 feet in width. On Boyle avenue the defendant company has a double-track street railway from Olive street, which crosses both Westminster and McPherson as it goes south. At the northeast corner of Boyle and McPherson there is a brick house facing south on McPherson avenue, and standing back 30 feet from the north line of McPherson, with its west side flush with the building line on the east side of Boyle avenue. On the opposite corner to the west or the northwest corner of Boyle and McPherson was a vacant lot, and on the southwest corner, and fronting on McPherson, was the residence of Mr. Jones. It was a dark, windy night, a little foggy—a dark and cloudy night. The driver of plaintiff's carriage sat upon the top seat, outside, and on the front of the carriage, and was driving west on McPherson avenue, on the north side thereof and about seven or eight feet from the north curbstone, in a slow trot. The lamps on the carriage were lighted. Plaintiff sat on the back seat of the carriage, and on the south side. The testimony of the plaintiff was to the effect that as the carriage neared Boyle avenue a car passed going south, and the driver checked up a little, and went forward in a little dog trot, and as he started...

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