Eckhard v. St. Louis Transit Company
| Decision Date | 25 October 1905 |
| Citation | 89 S.W. 602,190 Mo. 593 |
| Parties | CATHERINE ECKHARD v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
Geo. W Easley with Boyle, Priest & Lehmann for appellant.
The court below erred in not giving the instruction asked by defendant at the close of the plaintiff's evidence in chief, directing a verdict for the defendant. It sufficiently appeared from the evidence offered on behalf of plaintiff that the only negligence shown against the defendant was excessive speed and the failure to ring the bell. It was and is an indisputable fact that if the plaintiff's husband had either looked or listened, he could have seen and heard the approaching car in time to have avoided the injury. So that there was a clear case of contributory negligence shown on the part of the plaintiff's husband, without which the accident could not have happened. Where such is the case, and the facts are undisputed as to the conduct of the respective parties, the negligence of the defendant as to the excessive speed and failure to sound the bell may be conceded, and the conduct of the plaintiff's husband must bar any recovery. The law seems now well established in this State that where one, by the exercise of care, can avoid the negligence of another, failure to exercise care prevents a recovery. Ries v. Railroad, 179 Mo. 7; Moore v Railroad, 176 Mo. 528; Zumault v. Railroad, 175 Mo. 288; Warner v. Railroad, 178 Mo. 133.
Rassieur & Buder and John W. Benstein for respondent.
(1) The court properly refused the instruction asked by defendant at the close of plaintiff's case. In the absence of direct evidence to the contrary, or rebutting circumstances, the law presumes that the deceased exercised ordinary care at the time of the accident. The question of contributory negligence is one for the jury. Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, 111 Mo. 158; Jennings v. Railroad, 112 Mo. 268; Schlereth v. Railroad, 115 Mo. 87; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 198; Riska v. Railroad, 180 Mo. 168; Reed v. Railroad, 80 S.W. 919. (2) "In an action against a street railway for negligent death at a crossing, where the evidence conclusively showed defendant's negligence in running its car at an unlawful rate of speed, the plaintiff was entitled to recover, unless it was shown by a preponderance of the evidence that deceased was guilty of contributory negligence in failing to look and listen for the car before entering on defendant's tracks." Petty v. Railroad, 88 Mo. 320; Crumpley v. Railroad, 111 Mo. 158; Schlereth v. Railroad, 115 Mo. 87; Hutchinson v. Railroad, 161 Mo. 246; Weller v. Railroad, 164 Mo. 180; Riska v. Railroad, 180 Mo. 168; Reed v. Railroad, 80 S.W. 919.
This is an action by plaintiff, the widow of George F. Eckhard, deceased, to recover from defendant five thousand dollars damages for the negligent killing of her husband, the said George F. Eckhard, at the intersection of South Broadway and Fillmore streets in the city of St. Louis, on the afternoon of December 15, 1901.
The petition alleges the incorporation of defendant; its operation of a line of street railway along South Broadway; that South Broadway and Fillmore streets were open public streets in the city of St. Louis; that George F. Eckhard was the lawful husband of plaintiff; that on the 15th day of December, 1901, and within six months of the filing of the petition, George F. Eckhard, the husband of plaintiff, was crossing South Broadway at the intersection of Fillmore street, when defendant's servants in charge of its south-bound car, negligently and carelessly and without using any care to control the movements and speed of said car or slow up or stop said car, caused and suffered said car to run upon said crossing and said street at a violent, excessive and negligent speed, knocking down, running upon and dragging the said George F. Eckhard and causing the death of said George F. Eckhard; that an ordinance then in force required defendant's motorman and conductors to keep a vigilant watch for persons on foot, either upon defendant's tracks or moving towards them, and upon the first appearance of danger to stop the car within the shortest time and space possible; that at the time of the killing of said Eckhard these duties on the part of defendant's servants were neglected; that there was also in force at the time of the accident an ordinance which provided that a car should not be run at a greater speed than ten miles per hour, at the place of the accident, and that the car was run at a greater rate of speed than specified in said ordinance, to-wit, twenty miles per hour, and that the violation of said ordinance directly contributed to cause the death of said Eckhard.
The answer was a general denial and also contained a plea of contributory negligence, to-wit: "That the death of plaintiff's husband was occasioned by his own carelessness and negligence in passing upon defendant's track in close proximity to defendant's moving car, without looking or listening for the approach of said car." To this plea there was interposed a general denial.
The testimony on the part of plaintiff tends to show the following state of facts:
That plaintiff is the widow of George F. Eckhard, deceased. On Sunday, December 15, 1901, deceased, who was a night watchman at the Missouri furnace, left his home at the corner of Michigan avenue and Bates street at about 5:30 o'clock in the afternoon; that he was on his way to the place of his employment and after reaching Broadway proceeded south on the west side until he reached Fillmore street; that while he was crossing Fillmore street on the north crossing he was killed by being struck by the east front end of defendant's south-bound car just as he was stepping off of the track; that Broadway is a north-and-south street, and Fillmore is an east-and-west street, running to the river, and crossing Broadway at about 6000 south; that the St. Louis Transit Company operates its lines along Broadway at that point and has a double track, the track for the north-bound cars being on the east side, and the track for south-bound cars being on the west side of Broadway; that there is only one crossing from the west to the east side of Broadway at that point, and that the crossing is on the north side of Fillmore street; that the east-and-west streets north of Fillmore street, in their respective order, beginning with the one nearest Fillmore street, are Ellwood street, Dover street, Caldwell street, Bates street and Fassen street; that there is a grade immediately north of Fillmore street and that from Fassen street to Fillmore street there is a fall of about sixty-seven feet, and that in the first block north of Fillmore street there is a fall of eleven feet, and in the second block there is a fall of fourteen feet; that the fall for the two blocks immediately north of Fillmore street is twenty-five feet; that from Fillmore street and Broadway a person could see north about a block and a half or two blocks and that Broadway is straight from that distance and the bend occurs after you pass that distance north of Fillmore street. The speed of the car was estimated by the various witnesses at from ten to twenty-five miles per hour.
The evidence for plaintiff tended to show that deceased stopped on the west side of the north crossing of Fillmore street; that there was a north-bound car on the east track and that after the north-bound car had passed the Fillmore street crossing deceased was still seen at the corner on the west side of the crossing; that the bell of the north-bound car was ringing and that the car had passed over the north crossing before deceased undertook to cross, and that the bell, on the south-bound car which struck the deceased, was not ringing as it approached that crossing.
The facts as developed on the part of the defendant were substantially as follows:
Reuben Staten, a witness for the defendant, testified that he was standing on the corner of Broadway and Fillmore street on the evening of this accident. He says that he was standing between thirty and thirty-five feet south -- on the south side of the corner -- from the corner, between thirty and thirty-five feet, and while he was there he saw a man undertake to go across the street and a car ran over him; at the time he saw him he did not know who the man was, but ascertained who he was directly afterwards. This witness says in answer to a question, that the car was run on the plaintiff's husband when he stepped in the track; that he came from the west side of the street; that a mail car was coming north and there was a passenger car going south, and it looked to him as if Eckhard thought he could cross. The witness then states that Eckhard stepped out in the track and the car ran over him. The witness does not undertake to fix the length of time after the deceased stepped onto the track before the car struck him; in answer to a question, he says it was done "just in a jiffy -- just stepped out in the track." He says the car was lighted and that he, the witness, was standing on the south side of Fillmore, between thirty and thirty-five feet south of the curbstone, and on the west side of the car track. It is also stated by this witness that just before plaintiff's husband went onto the track he was looking right straight in front of him; didn't turn his head; "he looked neither north or south; he looked to me as though he was looking at the mail car." The mail car was in the direction in which he was looking. This witness further states in answer to questions, that before deceased stepped into the track the...
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