Asphalt Granitoid Const. Co. v. St. Louis Transit Co.

• Decision Date: 28 April 1904
• Citation: 80 S.W. 741,102 Mo. App. 469
• Parties: ASPHALT GRANITOID CONST. CO. v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

80 S.W. 741

102 Mo. App. 469

ASPHALT GRANITOID CONST. CO. v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

April 28, 1904.

STREET RAILROADS—CROSSING ACCIDENT—DRIVER OF VEHICLE—CONTRIBUTORY NEGLIGENCE —LAST CLEAR CHANCE—APPLICATION OF DOCTRINE —SUFFICIENCY OF EVIDENCE—VERDICT FOR PLAINTIFF—APPROVAL BY LOWER COURT —PEREMPTORY INSTRUCTION FOR DEFENDANT —REFUSAL—RIGHT OF APPELLATE COURT TO REVIEW—PRESUMPTIONS IN FAVOR OF VERDICT.

1. A judgment for plaintiff in a street railroad crossing accident case should not be reversed on appeal for the trial court's refusal to peremptorily instruct for defendant, unless, after giving plaintiff the benefit of the most favorable construction of all the evidence, and every reasonable inference in his favor that may be drawn therefrom, no other reasonable conclusion can be reached than that he was guilty of contributory negligence.

2. The Court of Appeals may review the refusal of a peremptory instruction for defendant by the lower court, though the jury has found a verdict for plaintiff which the lower court has approved.

3. The failure of the driver of a vehicle to pause, before crossing a street railroad track, until a moving car has passed out of his line of vision, so as to give him a clear view of the track, is contributory negligence as a matter of law, precluding recovery against the company for an ensuing collision with a car coming from the opposite direction.

4. Evidence in an action against a street railroad company for the death of a horse in a collision with its car examined, and held not to warrant the application of the doctrine of last clear chance in favor of plaintiff.

Goode, J., dissenting.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by the Asphalt Granitoid Construction Company against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehmann, for appellant. Koehler & Reiss, for respondent.

BLAND, P. J.

From a judgment in favor of defendant, recovered before a justice, plaintiff appealed to the circuit court, where, on a trial de novo, plaintiff (a corporation) recovered judgment for $250. From this judgment defendant appealed to this court.

At the close of plaintiff's evidence, and again at the close of all the evidence, defendant moved the court to instruct the jury that plaintiff was not entitled to recover. The court refused to give these instructions. Defendant insists that the court erred in refusing these instructions, for the reason that the evidence conclusively shows that plaintiff's servant was guilty of such contributory negligence as to preclude its right of recovery. The admitted facts are that John Schaefer, in the employ of plaintiff, was, on January 9, 1900, driving plaintiff's two-horse wagon east on Arsenal street, in the city of St. Louis; that when he arrived at Broadway he halted his team to let a south-bound car pass him; that this car stopped at the south crossing of Arsenal and Broadway to let two passengers alight; that as soon as the car passed him Schaefer proceeded to cross over the street, and that when the fore feet of his horses struck the east track he discovered a north-bound car on this track, close upon him; that he jerked his horses to the left, to get them off the track to avoid a collision, but did not succeed in getting the off horse off the track in time to avoid the car, and the car struck him on the hip, tore him loose from the wagon, and threw him into the street, breaking his back, from which injury he died in 25 or 30 minutes; that the harness and wagon were damaged. In respect to the occurrence Schaefer testified as follows: "I went down Arsenal street to get a load of granite on Barton and Kosciusko, and just as I crossed the track—went to cross—the car came, going south; and I waited until the car was past, and when the car passed I went to go across; and I didn't see no car coming, and just as I got my horses' front feet on the track I happened to see the car coming from the south. I jerked the team around, and just as I pulled them around the horse was hit from behind by the car, and throwed him over." Schaefer further testified that the accident happened about 8 o'clock in the morning; that there were no other vehicles in the street or about there at the time, that he saw. "I just seen, when I went to get on the track—I just happened to look up, and I saw the car coming the full speed; and just as I saw the car coming I went to pull him around to the left, and the car had hit the horse already. It came so fast I didn't have time to get the horse away from there. I never saw the car stop at all. I never looked at the car; I got hold of the horse as quick as I could, me and another man, because the horse was rearing and tearing around; I tried to get the harness off him." He (Schaefer) also testified that he did not hear any bell rung; that, if he had heard the bell, he would have looked around; that no one from the car came back to see what had happened, and that he was very much excited; that there is a jog to the north in Arsenal street at Broadway, nearly the width of the street, and he was driving northeast across Broadway when his horse was struck; that the car was nearly on him when he first saw it; that he did not notice the south-bound car stop at the crossing; that he stopped in Broadway opposite the northeast corner of Broadway and Arsenal, with his horses' heads three or four feet from the south-bound car as it passed, and as soon as it passed he drove on across the street; that he looked before he started, and saw no car coming from the south, and did not look again for a car until the one that struck his horse was "on top of him." Other witnesses for plaintiff testified that the northbound car was running at a speed of from 20 to 25 miles an hour; that they did not hear any bell rung, and that the motorman did nothing whatever to stop the car before it hit the horse, and that it run from 200 to 300 feet beyond Arsenal street before it was stopped. One of defendant's witnesses (H. F. Tacke) testified that he was a passenger on the north-bound car, sitting on the third seat from the front, and first saw the horses' heads on the west track when the car was about 75 feet south of them, and that the car was about 20 feet away when the horses' feet first struck the east track. The motorman and conductor in charge of the car and two of the passengers testified on behalf of defendant. They all agree that the car was running at an ordinary rate of speed, not exceeding eight or nine miles an hour; that its speed was slightly checked about the middle of the block south of Arsenal street, and that from this point the bell was continuously rung, and rung so loudly that one of the witnesses (Tacke) testified that he stopped reading his newspaper on account of the noise the bell was making. They all testified that the car was stopped within 60 to 70 feet after hitting the horses. The motorman, in respect to the matter, testified as follows: "I was due there at Arsenal, at the time the accident happened, about 7:50, I should judge. I was approaching the south-bound car, and it slowed up for some passengers to get off. I presume that was it. The rules are very strict about approaching another car, especially. You must sound your gong to prevent accident in case passengers should come out in front of you. I sounded the gong. That morning it was foggy, and the track was very slippery. I came down there sounding my gong, and when my car got—the front end of my car was up even with the front end of the other car—the first thing I saw was the horse's head come out from behind the other car. I sounded my gong. I gave it two or three hard raps to draw his attention, and put on my brake; and the car was sliding then, and I put on my sand. The rails of the track were so slippery she slipped, and the car struck his horse. He came in back of the other car, I should judge, twelve or fifteen feet; and I was very close onto his horse before I saw it. My car, I presume, went—I went by him—probably a...