Alewel v. East St. Louis & S. Ry. Co.

• Decision Date: 08 April 1930
• Docket Number: No. 20996.,20996.
• Citation: 26 S.W.2d 869
• Court: Missouri Court of Appeals
• Parties: ALEWEL v. EAST ST. LOUIS & S. RY. CO.

26 S.W.2d 869

ALEWEL v. EAST ST. LOUIS & S. RY. CO.

No. 20996.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by May Alewel against the East St. Louis & Suburban Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Holland, Lashly & Donnell, of St. Louis, for appellant.

Strubinger & Strubinger, of St. Louis, for respondent.

HAID, P. J.

This is an action for personal injuries sustained by plaintiff while a passenger upon one of the cars of the defendant. Plaintiff recovered a judgment for $1,500, from which this appeal is prosecuted.

Her amended petition was based on the fact that she was such passenger on defendant's car, and by reason of a collision of the street car with an automobile upon Illinois highway No. 12, on the outskirts of O'Fallon, Ill., she was injured in the respects alleged, and that such collision was due to the negligence of the defendant, its agents and employees in charge of said car.

The answer, as it stood at the trial was a general denial.

The evidence introduced at the trial was to the following effect:

The testimony in behalf of plaintiff was that on March 9, 1927, she boarded a car of the defendant at Eads Bridge in St. Louis, destined for O'Fallon, Ill.; that this car became disabled on the bridge and she transferred to another car; that on the first part of the journey she sat in the front part of the last-mentioned car, but at Edgemont, Ill., when the motorman changed ends, she sat in the last seat of the compartment in which she was located, which immediately adjoined the smoking room of the car; that on the concrete highway right at the edge of O'Fallon there was a collision between the car and an automobile, as the result of which collision she was injured; that as the car in which she was riding approached the crossing it was running from 40 to 45 miles per hour and did not slacken speed before the collision; that no gong or bell was sounded by the street car; that plaintiff saw the automobile when it was about 200 feet from the crossing and the street car was about the same distance from the crossing; that just before the collision plaintiff heard an awful screeching noise coming from the automobile like brakes being put on, followed by the crash; that after the collision the street car ran about 300 feet before coming to a stop and then backed up to the place of accident; that just before the collision the street car was going down grade. Plaintiff also introduced other evidence to the effect that the country about the place of accident was flat; that no gong or bell was sounded; that when the street car reached Glen View, about a mile from the place of the accident, it was 15 minutes behind its schedule time; that the car was running about 40 miles an hour; that just before the collision the street car and the automobile were about the same distance from the crossing, about 200 feet; that it appeared then that, if one or the other did not slacken up, there would be a collision; that the street car was 45 or 50 feet long and the concrete road 18 feet wide; that the Louisville & Nashville railroad tracks were about 10 feet from the street car tracks; that the automobile struck the street car near the rear end thereof; that the street car traveled about 300 feet after the collision; that the highway on which the automobile was proceeding was a public highway known as No. 12, running east and west, while the tracks crossing the highway run practically north and south; that the street car was running in a northerly direction at the time of the collision; that when a street car is more than 1,000 feet south of the highway it cannot be seen from vehicles on the highway, because it comes from a cut there; that about 1,000 feet east of the crossing the highway curves; that the automobile, in order to get to the street car tracks, had to cross the Louisville & Nashville railroad tracks; that there was a railroad crossing sign at the Louisville & Nashville tracks, which were some 50 feet from the street car tracks; that the street car was going faster than usual; that the highway was used by automobiles and trucks traveling along there constantly, except in bad weather; that there was a warehouse about 100 feet long east of the street car tracks, between 60 and 80 feet from the road; that this particular street car was going at an unusual rate of speed — faster than usual.

The testimony for defendant was that just before the collision the conductor's attention was attracted by short blasts of the whistle, and it appeared then that there would be a collision; that a car going at 35 miles per hour could not be stopped in less than 300 feet; that when the street car was 150 feet from the crossing the automobile was 300 feet away, and at that time the automobile was on the other side of the Louisville & Nashville tracks; that there is a whistling sign about 300 feet back of the crossing, and that the motorman blew the whistle at that place; that the motorman brought the car to a stop about 300 feet after the collision; that there was a collision on the bridge that delayed the car a few minutes; that when the motorman applied the air the front of the car was starting across the pavement, and before it got across the pavement it had begun to slacken its speed; that an automobile going 50 miles an hour on a slab could be stopped in 75 to 100 feet; that 75 feet would be a good stop; that when he heard the short blasts it appeared to him that there might be a collision. An employee of the Illinois state highway department testified that the highway had a sign 26 inches wide and 42 inches long with "Danger, Railroad Crossing" on it; that on the pavement itself there were four places painted black and white, zigzag, on each side of the tracks, the first one 100 feet from the crossing, another one 100 feet beyond that; that when the front of the street car reached the hard road the automobile was about 75 or 80 feet away, at about the Louisville & Nashville tracks; that at the time of the impact the street car was traveling about 18 miles an hour, it had been going about 23 to 25 miles an hour which was about the regular speed for street cars out there in the country. Another witness employed by the state highway department at the time of the accident testified that he saw the automobile approaching the street car crossing at a high rate of speed and saw the driver of the automobile look in the direction of the street car when the automobile was 150 to 200 feet back of the crossing, and that the street car was between 200 and 300 feet from the highway, and that the street car slowed down some. Another witness for the state highway department testified that, at the time the front of the street car reached the edge of the hard road and was starting over, the automobile was right on the east side of the Louisville & Nashville tracks, about 70 or 80 feet from the street car tracks; that the automobile was on the right side of the road, but swerved slightly before he hit the street car; that the street car stopped about 200 feet after the collision; that the automobile struck the street car about 6 or 8 feet from the rear end, at the rear trucks, and it knocked some iron off of the boxes. Another witness who was driving an automobile in an opposite direction from the one which was involved in the collision testified that he heard the whistle of the car sounded and slowed up, that the street car was traveling as they usually do in that open country — about 35 miles per hour, perhaps not so fast; that he heard whistles blown twice or three times, two of them just before the street car reached the hard road, he thought it was when the street car was about 300 feet from the road.

The first contention of the defendant is that the trial court erred in refusing to give the peremptory instruction requested by it at the close of all the evidence because plaintiff's petition was based upon the theory that the doctrine of res ipsa loquitur applied when the testimony showed that it had no application whatsoever. It is true that the petition was founded upon the theory stated, and, therefore, it would have been unnecessary for the plaintiff upon her case to show the specific acts of negligence, but she did not thereby lose her right to have the doctrine applied. Stauffer v. Railroad, 243 Mo. loc. cit. 325, 147 S. W. 1032. That she did assume this burden was rather to the advantage of the defendant. The defendant has cited us to no authorities to sustain its position in this respect, and we can see no reason for holding that the defendant was prejudiced thereby, and we must accordingly overrule the defendant's contention upon this point.

The defendant next contends that the court erred in refusing to give the peremptory instruction offered by it at...