Abramowitz v. United Rys. Co.

• Decision Date: 02 June 1919
• Docket Number: No. 18467.,18467.
• Citation: 214 S.W. 119
• Parties: ABRAMOWITZ v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

214 S.W. 119

ABRAMOWITZ v. UNITED RYS. CO. OF ST. LOUIS.

No. 18467.

Supreme Court of Missouri, Division No. 1.

June 2, 1919.

Rehearing Denied July 9, 1919.

Appeal from St. Louis Circuit Court; William M. Kinsey, Judge.

Action by Max Abramowitz against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

This action was brought by appellant to the October term, 1912, of the circuit court aforesaid to recover $15,000 as damages, on account of personal injuries alleged to have been sustained on May 27, 1912, resulting from a collision between a wagon driven by plaintiff and a car of respondent. The case was tried upon appellant's second amended petition, which described the collision, as having taken place on above date while plaintiff was crossing Wash street, from the south to the north side of same, at the point where Selby place runs north from Wash street. The latter runs substantially east and west, while the former runs north and south. The defendant maintained a double track on Wash street where the accident occurred. Cars traveling from east to west passed over the north track, and those traveling from west to east passed over the south track.

The petition charged: (1) That defendant was guilty of negligence in operating its car at an excessive, reckless, and negligent rate of speed, without giving any signals or warning of its approach; (2) that it was guilty of negligence in violating the 10-mile speed ordinance of said city at the time of said collision; (3) that it was guilty of negligence in violating the vigilant watch ordinance of said city, which required defendant's servants to keep a vigilant watch for vehicles on the tracks or moving towards them, and failed on the first appearance of danger to plaintiff's vehicle to stop the car in the shortest time and space possible; (4) that it was negligent in violating an ordinance of said city which prohibited the car which injured plaintiff from passing a car on the south track at or near the place of accident, at a rate of speed exceeding 3 miles per hour, and which required the motorman in control of said car to ring a warning gong or bell. The answer contained a general denial, with a plea of contributory negligence. The reply is a general denial.

Evidence. The testimony as to the rate of speed the car was traveling at time of accident was conflicting. Plaintiff testified that it was running 30 or 35 miles per hour. Sam Wallerstein testified that the motorman went very fast; that after the car hit plaintiff it ran from Selby place almost to Sixteenth street, a distance of about 80 or 85 feet. Charles C. McCarthy, the motorman in charge of car which struck plaintiff, testified that he was going at a speed of between 8 and 9 miles per hour. Edmund G. Ridgeway, one of defendant's witnesses, testified that just before the accident the car was going 12 to 15 miles per hour.

The above covered in substance the testimony in regard to rate of speed of the car at time of accident.

Defendant's counsel admitted at the trial that respondent was the owner of the car which collided with plaintiff, and that it was operating same at time of accident. It was also admitted that the 10-mile ordinance of the city of St. Louis, Mo., covered the streets where said accident occurred.

In regard to the vigilant watch and alleged failure to stop the car in the shortest time and place possible, the plaintiff testified that, when he reached the north track, he saw the car at Fifteenth street, a half block away. Witness Smith places this distance at from 140 to 150 feet.

Sam Wallerstein testified as follows:

"The motorman went very fast, and when he got within about 10 feet he could not stop. He struck the wagon, and the car ran on. He could not stop it any more. He didn't do anything before the car struck. He didn't see me as I was waving my hand. I did not see the motorman do anything with the wheel or the brakes on the mechanism of the car."

He also testified that no bell or gong was sounded on the car which struck plaintiff. This witness says he was standing on the corner of Selby place and on west side of Wash street when the accident occurred.

Alvin H. Schureman, a witness for defendant, testified:

"I saw the driver the very moment he came out from behind the car. * * * I should say, as I am able to judge distances, that this horse was about 40 feet from the car when I first saw it; that is purely a relative proposition. * * * When I first saw this horse, I think the front ends were almost together; that is, the front end of the east-bound car and the front end of the west-bound car were almost opposite each other, very nearly so. The horse appeared a car length ahead, a little bit more than that."

W. P. Smith testified that the cars in use on Wash street were about 48 feet in length. He gave it as his opinion that the car in controversy could have been stopped within 35 feet at time of accident if it had been running 10 miles per hour.

There was testimony tending to show that the car struck the right hind wheel of plaintiff's wagon, turned the latter over, and threw him out.

Plaintiff also offered in evidence the 10-mile speed ordinance and vigilant watch ordinance of the city of St. Louis, which will be referred to hereafter.

As the errors assigned by appellant relate to the action of the trial court in giving, refusing, and modifying...