Alexander v. Springfield Traction Co.

• Citation: 249 S.W. 971
• Decision Date: 16 March 1923
• Docket Number: No. 3045.,3045.
• Parties: ALEXANDER v. SPRINGFIELD TRACTION CO. CO.
• Court: Court of Appeal of Missouri (US)

249 S.W. 971

ALEXANDER v. SPRINGFIELD TRACTION CO. CO.

No. 3045.

Springfield Court of Appeals. Missouri.

March 16, 1923.

Rehearing Denied April 14, 1923.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by A. C. Alexander against the Springfield Traction Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Frank B. Williams, of Springfield, for appellant.

John Schmook, of Springfield, for respondent.

FARRINGTON, J.

The plaintiff, respondent, brought suit in a justice court for damages sustained to his automobile truck one night while he was en route from the Springfield post office, at the intersection of Brower street and Boonville street, to the railroad station; the damages resulting from a collision with one of defendant's street cars. The statement filed in the justice of the peace court charges that defendant's servant negligently caused one of its street cars to run against plaintiff's truck. From a judgment rendered against it there the defendant appealed to the circuit court, where, as a result of a trial to the court and a jury, judgment was rendered in plaintiff's favor in the sum of $111.85, and from this judgment defendant brings its appeal to this court.

No question is raised on the amount of the verdict. Defendant, among other things, assigns error in the action of the trial court in overruling an instruction in the nature of a demurrer to the evidence offered, and this calls for a statement of the facts as shown by the evidence.

Plaintiff's evidence Shows that he was a a mail carrier, and that on the night of October 5, 1920, as he was driving away from the post office to go to the railroad station, he was struck by one of defendant's northbound street cars on its east track on Boonville street. The plaintiff had driven west on Brower street to where it intersects Boonville street, and as his truck passed over the east street car track of defendant the rear end of it came in collision with a north-bound street car. The truck is about 15 feet long and has a cage top over It. He had been operating this truck line, carrying the mail, since same time in September prior to the accident, and in doing so was required to make 10 or 12 trips a day over this same street intersection. The time the collision occurred was about 8:40 p. m., and it was dark. Brower street is not paved, and is used principally by mail carriers coming from the post office out on Boonville street, which is paved with brick. On entering the intersection of Brower and Boonville streets there is a dip or a low place at the gutter at the east line of Boonville street, and what is shown in the evidence to be a rather sharp Incline from the gutter up to about 3 feet et the east track. Brower street is 17 feet wide and Boonville street is 36 feet wide at this point, and from the gutter line on Boonville street to the east rail of the street railway tracks it is 13½ feet, and the track is 4 feet 10 inches wide, and the north and south bound tracks (there being double tracks there) are 4 feet 8 inches apart. A car coming from the south travels up grade on Boonville street to Brower street, the point of the collision, and the first street south of Brower street on Boonville street is Chestnut street, a distance of about 235 feet.

Me plaintiff testified that as he came out of Brower street he first looked north as soon as he got where he could see past the post office building, to see if a car was coming from the north; seeing none, and having traveled about 10 or 12 feet farther, he looked south and saw the car that struck him at Chestnut street, something over 200 feet. He said he did not notice the speed the street car was making; that he thought he had plenty of time to cross over the tracks before the car reached him, and from then on his attention was given only to his truck until he saw he was on the street car tracks and that he was going to be caught. The street car, when it struck the truck, ran 10 or 15 feet, having struck the rear wheel of the truck. The weight of the load in the truck and the truck itself was about 3,500 pounds.

A good deal of testimony is taken up relative to obstructions, but it is unnecessary to call attention to this other than to say that the evidence shows that, when the the plaintiff started toward the track, he could see from there and on until he reached the track for a distance of at least 200 feet, and there was nothing to obstruct the motorman's view of plaintiff's truck from the time his car was 200 to 235 feet from Brower street, if plaintiff's car had reached the place plaintiff testified he had traveled to. Plaintiff is corroborated in his testimony by that of his son, who was in the truck with him.

There was a sharp conflict in the testimony as to the speed the car was traveling, but plaintiff's evidence tends to show that it was running from 25 to 30 miles an hour.

Under this statement of facts, we do not think that the plaintiff could be held as having been negligent, as a matter of law, for driving in front of this street car, which he says when he started to go across the street was some 200 feet away. One crossing a street over street car tracks knows, as heretofore held by this and other courts, that street cars are so constructed and equipped with...