Fechley v. Springfield Traction Co.

Citation96 S.W. 421,119 Mo. App. 358
PartiesFECHLEY v. SPRINGFIELD TRACTION CO.
Decision Date08 May 1906
CourtCourt of Appeal of Missouri (US)

Plaintiff was invited by P. to ride with him in a covered vehicle, and was injured by a collision between the vehicle and a street car as P. was driving across the tracks. P. took no precaution which could be effective to prevent a collision with the car as he drove on the track, and plaintiff, though aware of this, did nothing to ascertain either the proximity of the tracks or the danger of a collision from the approaching car. Held, that plaintiff was guilty of contributory negligence in doing nothing personally to insure his safety.

4. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — PLEADING — ISSUES AND PROOF.

Where, in an action for negligence, the only answer remaining in the record after the issues were made up consisted of a general denial, plaintiff's contributory negligence was no defense unless the testimony he introduced so clearly showed that he was negligent in a manner contributing to the accident that the court would have been warranted in denying him relief.

5. PLEADING — ISSUES AND PROOF.

Where an action for injuries was based on common-law negligence, and no violation of a city ordinance was alleged, the court did not err in excluding an ordinance, offered by plaintiff, which he claimed defendant had violated.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Joseph Fechley against the Springfield Traction Company. Judgment for defendant. Plaintiff appeals. Affirmed.

A. H. Wear and White & McCammon, for appellant. Delaney & Delaney, for respondent.

GOODE, J.

Appellant was injured by the collision of a street car operated by respondent's employés with a buggy in which he was riding, and instituted this action to recover damages. The petition charges that the casualty was caused by the negligent operation of the car without specifying particularly the acts of negligence. The accident occurred in the city of Springfield, Mo., on Commercial street, an east and west thoroughfare, at a point in the block between Boonville and Campbell streets, two north and south thoroughfares. We shall state the facts according to the testimony for the appellant. Fechley was riding in a one-horse buggy belonging to a man named Pierce, and driven by the latter. The day was rainy and the curtains of the buggy were down. An election was in progress and Pierce had voted early in the morning at a polling place on the south side of town. He was interested in a candidate for the office of sheriff, and endeavored to induce appellant to vote for that candidate. Appellant was not acquainted with the man and alleged this fact as a reason for not voting for him. Pierce offered to take appellant to the north side of the city and make him acquainted with the candidate, inviting Fechley to ride over in his buggy. Fechley accepted the invitation, got into the buggy, and the two proceeded northward on Boonville street. Pierce, who was driving, was seated on the left side of the buggy, and Fechley on the right side. When they reached the intersection of Boonville and Commercial streets, they turned west along the south side of the latter street. Parallel car tracks ran along Commercial street covering a space in the center of about 14 feet. The driveway between the curbs was about 52 feet wide and it was 20 feet from the south rail of the south track to the south curbstone. When appellant and Pierce drove on Commercial street from Boonville, they noticed a street car standing at the intersection of the two streets on the north track on Commercial street and headed west on that street. Pierce and Fechley drove west on the south side of Commercial in a trot until they reached a point nearly opposite a polling place which stood on a lot on the north side of the street. Pierce then turned diagonally across the track toward the polling place, and when the buggy had crossed the south track and the horse the north track, a car coming along the latter track from the east struck the buggy on its rear wheels and seriously injured appellant, who was seated on the right side. The horse was driven across the tracks in a walk. Pierce swore that, after crossing the south track and while his horse was over the north rail of that track and ready to put his forefeet down on the south rail of the north track, he (Pierce) looked out of the buggy to see if a car was coming and saw none; that he did not rise from his seat but could see eastwardly along the track 30 or 40 feet; that the curtains of the buggy were on and fastened; not loose and open; that there was a small glass lookout in the back curtain of the buggy about five inches long and two inches wide, but he did not look through it to see if a car was approaching. Pierce swore that his best judgment about when he looked for a car was that he did so when the horse was crossing the north rail of the south track, with his forefeet about striking the south rail of the north track. The tracks were 4 feet and 8 inches apart. Pierce said he looked out at the northeast corner of the buggy, leaning forward and looking around Fechley eastwardly along the street; that he did not tell Fechley, who was leaning back in the buggy at the time, what he was looking for; that after he looked for a car the buggy had proceeded from 6 to 12 feet when the collision occurred. Fechley swore he did not look for cars at all; that when Pierce started to drive across the tracks he (Pierce) put his hand up and looked over like this (witness putting his hand up and indicating) and that was the last he (Fechley) knew; that he had lived in Springfield about 23 years; did not not know there were double tracks on Commercial street, but knew cars were operated by electricity east and west on that street; that he did not see the car tracks as they approached them, was not looking for tracks and did not have anything to do with "the looking out"; that he knew a track was there and that they were going to cross it, and could easily have put his hand along the curtain and looked down the street; that he could have done so without getting out of his seat, that Pierce had his hand like this (indicating) and looked around just like that (indicating); that he (Fechley) guessed Pierce raised up with his head clear around the curtain; that Pierce put his head around his (Fechley's) body when looking eastward; that Pierce was a tall man and raised up out of the seat when he looked. Other witnesses testified regarding the accident, some of whom said they did not hear the gong sounded or see the motorman make any attempt to stop the car prior to the collision. There was strong testimony to the contrary on both those issues and going to show the gong was sounded continually from the time the car left Boonville street; that the buggy turned on the track too near the car for a collision to be averted, and that the motorman did all he could to stop. One witness, an ex-motorman, who qualified as an expert on the operation of cars run by electricity, gave testimony going to show the distance in which an electric car running at the speed the one in question was, could be stopped, and tending to prove it might have been stopped before reaching the buggy after the danger of a collision should have been apparent to the motorman, if, when the horse stepped on the north track, the car was the extreme distance from the buggy testified to by some witnesses. Under the instructions given a verdict was returned in favor of the company, from which judgment this appeal was taken, appellant contending that the rulings on the instructions were erroneous.

The testimony conclusively proves Pierce was guilty of negligence and if this were an action by him, there would be no difficulty in holding his negligence would prevent a recovery because it proximately contributed to the accident, unless the motorman, by ordinary care, could have stopped the car in time to prevent a collision after the danger to the buggy ought to have been visible. Pierce's own statement shows he did not look for a car bound west on the north track until his horse was in the very act of stepping over the south rail of that track, when plainly it was too late to avoid a collision by stopping the buggy. Unless the conditions are exceptional, the law requires a person about to drive on a car track to look and listen for cars before doing so. Sanitary Dairy v. Transit Co., 98 Mo. App. 20, 71 S. W. 726; Killian v. Railroad, 86 Mo. App. 473; Damrill v. Railroad, 27 Mo. App. 202; Payne v. Railroad, 136 Mo. 562, 38 S. W. 308; Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339; Butts v. Railroad, 98 Mo. 272, 11 S. W. 754. The precaution is required in order that the person approaching the track may refrain from...

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