Aldrich v. St. Louis Transit Company

• Decision Date: 14 April 1903
• Parties: MARY ALDRICH, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

74 S.W. 141

101 Mo.App. 77

MARY ALDRICH, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 14, 1903

[Copyrighted Material Omitted]

Appeal from St. Charles Circuit Court.--Hon. Elliott M. Hughes Judge.

REVERSED.

STATEMENT.

One of the defendant's street cars ran against the plaintiff May 13, 1901, at the intersection of Fourteenth street and St. Louis avenue in the city of St. Louis and injured her severely. That accident gave rise to this litigation, the plaintiff charging in her petition that it was caused by the negligence of the defendant's carmen or servants in failing to use proper efforts to stop the car after they saw the plaintiff's position of peril on defendant's track; or to use ordinary care to discover her peril. The "vigilant watch" ordinance is pleaded in the petition and also the municipal regulation that street cars shall not be run at a higher rate of speed than eight miles an hour. The defendant company is charged with the violation of both those regulations, there being allegations that the car which struck the plaintiff was running at a speed in excess of the limit imposed by the ordinance and that the carmen neglected to vigilantly watch for persons on the track.

The answer denies the allegations of the petition and alleges the special defense that plaintiff negligently and carelessly went on the track in front of the approaching car, when by looking and listening she might have noticed it and avoided the accident; that she negligently failed to observe her surroundings and in consequence thereof was struck.

Plaintiff has been deaf all her life and, of course, could not hear the approach of the car, nor the bell which the motorman appears to have rung vigorously in ample time to warn her but for her deafness. The accident occurred in the afternoon of a bright day, the circumstances being these: Plaintiff emerged from a bakery shop on the south side of St. Louis avenue about midway of the block between Thirteenth and Fourteenth streets; she walked towards Fourteenth and when she got to the corner, started across St. Louis avenue. A car was coming westward on the avenue and the motorman, discerning that the plaintiff intended to cross the tracks, began to ring his bell when about eighty steps from the crossing, as the witnesses say; that is, about two hundred and forty feet. The plaintiff had her eyes fixed on a postal card, and not hearing the bell on account of her deafness, she crossed the south track, stepped on the north one along which the car was approaching, advanced to the north rail of the north track and had only a step to take to be out of danger when she suddenly whirled around with her back towards the car and her face to the west, stood in that position for a second, then turned around so as to face the south again, when the car struck her. The motorman had continually rung the bell from the time he began to ring it eighty steps away, to the instant of the collision. When the plaintiff stepped on the north track the car was only eighteen feet distant from her and nearly all the testimony on both sides is that it could not have been stopped then short of thirty-five or forty feet, even if it was running but eight miles an hour. From the time plaintiff stepped on the track in front of the car the weight of the evidence is that the motorman did what he could to stop it, but was unable to stop quickly enough to avoid striking the plaintiff. There was testimony that it could have been stopped easily after the plaintiff began to cross the street; that is, stepped off the south sidewalk to go across. But the motorman rang the bell to give notice of its approach to the crossing, relying on the plaintiff heeding that warning.

Thomas Downs, a witness for the plaintiff, testified he was on the car and that his attention was attracted by the bell ringing; the car was then about fifty or sixty feet from the plaintiff, fifty feet anyhow; hearing the bell caused him to look out; plaintiff was then standing close to the middle of the track and seemed to be turning and twisting about like some one excited; did not know whether her back was to the car, but knew the car hit the back part of her shoulder; she gave no evidence of hearing the bell but was standing in the middle of the track, turning and twisting around; the car was running at the usual speed; the motorman was sitting on his stool with his hand on the brake; he seemed to be turning and pushing it; he was turning and twisting the brake. This witness testified on cross-examination, that when he first saw the plaintiff the car was fifty feet away, and again that it was about thirty feet away; plaintiff remained standing there from that time until she was hit.

Adolph Briggs, also for the plaintiff, swore that he saw plaintiff come out of a house about the middle of the block with something in her hands. She met a young man as she went along; showed him what she had in her hands and made signs; he also made signs and she went west to the corner. When she got to the corner, witness saw the car coming as far back as Twelfth street; about a quarter of the way, or about eighty steps, the motorman saw plaintiff was going to cross the track and rang the bell; she at that time was in the track going over to the sidewalk on the other side of the street; the motorman kept ringing the bell; she went on looking at a postal card and stepped on the track; witness ran to her but then the car was coming and it was too late; she just went round and stopped and the car caught her, when she screamed and tumbled over; the car continued forty feet further; forty steps. This witness said again that plaintiff walked on the track and looked at the car and about that time the car struck her; she turned westward away from the car; had a sunbonnet on and did not look towards the car; witness said he stepped off the distance the car was away from the plaintiff when the motorman began to ring the bell and found it was eighty steps; said the conductor told him they were late and had to make up lost time; the motorman also told him the car was running faster than eight miles an hour. The motorman checked the car when about the width of a building from the plaintiff. "If he had put on the brakes immediately when he began to ring the bell he could have stopped the car twice." This witness repeatedly said the car went forty feet beyond the plaintiff after striking her and added, forty steps; so it is impossible to tell what he meant. He testified the bakery was in the middle of the block and the car was in the middle of the block when she was on the track; that she stopped to read the postal card when she was on the second track; but that she could have made one more step and been across. "She looked at the postal card; she looked at the postal card before she reached the track; she was looking at the postal card before she reached the car; she continued to look at the card while she was walking; apparently she found an error in the postal card and turned around this way westward; she turned around with the idea to turn back." Witness also testified the car was about fifteen steps from the plaintiff when the motorman put on the brakes; and that he rang the bell continually after he put on the brake; rang the bell from eighty steps until the car struck her.

A witness for the plaintiff by the name of Fulky testified that he saw plaintiff standing on the walk about a foot in front of the "iron;" then saw her go across the street on Fourteenth street; then she got to St. Louis avenue, stood on the track and looked around. "When I looked a car was there; struck her right on the shoulder; she was standing on the track, turned around and looked south; the car did not slow down; did not get any slower." When he first saw the woman facing the track there was no car in sight.

Adelphina Briggs, for the plaintiff, testified she was eleven years old; saw plaintiff coming out of the house when the car was about Thirteenth street; plaintiff came up and met her husband; she went around the corner and across the street; then she was in the middle of the car track looking at a postal card. She must have seen some mistake and turned around and wanted to go back and the car was in the middle of the block and the bell was ringing and ringing. It could have been stopped a few times and saved her and when she turned around the car struck her. This witness testified the plaintiff had on a sunbonnet and was not facing the car but was facing from it; she was standing on the track and was going away when the car struck her. The motorman kept ringing the bell from the bakery until about eighteen feet from her, when he began to turn the crank. She testified on cross-examination that the plaintiff had her face turned towards the west and the car was about eighteen feet from her when she stood on the track reading a postal. This question was asked the witness: "Q. Now when she first stepped on the track or stepped between the tracks, where was the car? A. About eighteen feet."

James B. Dutton did not see the accident but knew the speed of cars and thought a car running eight miles an hour could be stopped in thirty or forty feet.

Charles Doyser, testified a car running eight miles an hour on dry rails could be stopped in thirty or thirty-five feet.

J. H Hillenkoeter saw the accident; the day was clear and the tracks dry; thought the car was running at a speed of eighteen miles an hour; it stopped at the west crossing after striking plaintiff; witness did not notice if it checked speed before it struck her; he did not see the motorman make any effort to stop the car before it struck the plaintiff, but could not tell whether the motorman was standing...