Aqua Contracting Co. v. United Rys. Co. of St. Louis

• Citation: 203 S.W. 483
• Decision Date: 07 May 1918
• Docket Number: No. 15020.,15020.
• Parties: AQUA CONTRACTING CO. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

203 S.W. 483

AQUA CONTRACTING CO. v. UNITED RYS. CO. OF ST. LOUIS.

No. 15020.

St. Louis Court of Appeals. Missouri.

May 7, 1918.

Rehearing Denied May 22, 1918.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by the Aqua Contracting Company against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Chauncey H. Clarke, both of St. Louis. for appellant. Earl M. Pirkey, of St. Louis, for respondent.

BECKER, J.

This appeal is prosecuted from a judgment for $481.46 rendered against defendant in an action for damages to plaintiff's motor truck, alleged to have resulted from defendant's negligence in causing a collision between the truck and one of defendant's street cars.

Plaintiff's petition is predicated upon the following assignments of negligence: First, failure to sound the gong. Second, the operation of said car at a "negligent and high rate of speed" in excess of 15 miles per hour —the maximum rate prescribed by an ordinance of the city of 1St. Louis. Third, the act of the motorman in "negligently failing, for some time next prior to the time said truck was struck as aforesaid, to keep a vigilant watch ahead for vehicles on or moving towards said track on which said car was running, and in, as aforesaid, negligently failing to stop, or attempting to stop, said car in the shortest time and space possible under the circumstances with the means at his command consistent with the safety of the persons on said car when he knew, or by the exercise of ordinary care would have known, of the danger to said truck of being so struck as aforesaid by said car in time by the exercise of ordinary care" to have, with the means at his command and consistent with the safety of the persons on said car, stopped said car before it struck said truck as aforesaid, or so checked the speed of said car as to have prevented it from striking said truck," in violation of the vigilant watch ordinance of the city of St. Louis.

All the testimony adduced on behalf of the plaintiff tended to prove that on May 4, 1914, plaintiff's chauffeur was operating its automobile sprinkling truck along Kingshighway in the city of St. Louis. Kingshighway is an open, public street running north and south, and on it are double tracks on which the defendant operates its electric street cars. The truck in question was about 25 feet long, and with the tank thereon filled weighed about 10 tons. On the morning in question the chauffeur had filled the tank with water near Oleatha avenue, at a point close to defendant's tracks. When the tank was filled the chauffeur cranked his machine. then looked both north and south; to the north he had an unobstructed view for over 4 blocks. He neither saw nor heard a car. Thereupon he took his place in the driver's seat and started the truck. From his position at the steering wheel lie could not look north. He immediately steered the truck toward the defendant's tracks, intending to cross them. While the truck was on the tracks defendant's car, approaching from the south at about 25 miles per hour, struck the truck. There was testimony that when the truck first got on the tracks, going at a speed of about 1 mile per hour, the street car was 300 feet away. There was testimony that the street car, under the circumstances as testified to in the case, and at the place in question, running 25 miles per hour, could have been stopped in 110 feet.

A witness for plaintiff testified he was a passenger on the said car; that when the street car had gotten to a point within 200 feet of the truck; which at the time had its left front wheel about the center of the car tracks, and the chauffeur teas trying to swing the truck to the right and away from the tracks, the motorman left his controller and stepped back toward the sand box at his left without shutting off the power, permitting the car to run along until it collided with the truck.

A boy aged nine years was a witness for plaintiff, and testified he was sitting on the sand box next to the motorman on the car in question,...