Barrie v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Citation: 76 S.W. 706,102 Mo. App. 87
• Parties: BARRIE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

76 S.W. 706

102 Mo. App. 87

BARRIE v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

STREET RAILWAYS—NEGLIGENCE—COLLISION WITH VEHICLE — CONTRIBUTORY NEGLIGENCE —EVIDENCE — CONTRADICTORY PHYSICAL FACTS—COMPARATIVE NEGLIGENCE.

1. Where, in an action against a street railway for damages by a collision between a car and plaintiff's wagon, the physical facts show that, if plaintiff had looked before driving on the track, he could have seen the car, his testimony that he looked, but did not see the car, should be withdrawn from the consideration of the jury.

2. Where, if the motorman of a street car had kept a vigilant watch, he would have seen plaintiff's perilous position in time to have stopped his car and avoided the collision, the railroad is liable, though plaintiff drove upon the track without looking or listening.

3. Where, without looking or listening, one drove on a street railway track so near to an approaching car that it could not be stopped in time to avoid a collision, the railroad was not liable, though the motorman failed to sound his gong.

4. Where one driving a vehicle and approaching a street railway track sees the car approaching, but continues on his course without again looking to see whether he can safely cross, he is guilty of contributory negligence, precluding recovery.

5. In an action against a street railway for damages from a collision between plaintiff's wagon and a car, plaintiff testified that on approaching the tracks he looked for a car, but did not see one until the front wheels of his wagon were on the track. The physical facts showed that the car must have been in sight when he looked. Held, that an instruction that if defendant could have averted the accident after discovering plaintiff's peril, but failed to do so, it was liable, irrespective of whether plaintiff exercised care to look out for the car, if plaintiff exercised ordinary care to avoid the accident after he became aware of his danger, was erroneous, as authorizing a recovery on the assumption that plaintiff was guilty of no contributory negligence, provided he used diligence to get over the track after the front wheels of the wagon were on it.

Appeal from St. Louis Circuit Court; J. W. McElhinney, Judge.

Action by David Barrie against the St. Louis Transit Company. From an order setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Affirmed.

Plaintiff was driving a covered milk wagon, and delivering milk to residents on and in the neighborhood of Jefferson avenue, in the city of St. Louis. Defendant has a double street railway track in Jefferson avenue, over which it operates cars by electric power. As plaintiff was driving across the track the hind wheels of his wagon were struck by one of defendant's cars, running south, the wagon was overturned, and defendant's leg broken. The suit was to recover for these injuries. The defense was contributory negligence. Jefferson avenue runs north and south. Cars going south run on the west track. Plaintiff testified that he drove out of an alley about the middle of the block on Jefferson avenue; that when he got on the avenue, and cleared the building line, he looked north and south, but saw no car coming, and drove straight forward across the street; that about the time the fore wheels of his wagon were over the west rail of the west track he saw a car coming close upon him; that he was driving at about the rate of three miles per hour up to the time he saw the car; that he then whipped up his horse, but before the hind wheels had cleared the track the wagon was struck by the car and turned over. There was nothing to prevent the plaintiff, but the sides of his wagon, from seeing the car coming. After he got on the avenue there were no obstructions in the street, nor turns in it, to obstruct his view, for a distance of over 200 feet. He testified, however, that he leaned forward until his view cleared the sides of his wagon, and looked up and down the street, north and south; that he neither saw nor heard a car; and that he then drove straight forward across the track. He was unable to give any explanation or reason why he did not see the car, which was within less than 200 feet of him when he first drove on the street. Charles Sagert, a witness for plaintiff, testified that he was on Jefferson avenue, a short distance south of where plaintiff's wagon was struck; that he saw the car coming as the milk wagon came out of the alley; that the motorman did nothing to stop the car until it struck the wagon; that he did not hear the gong of the car sounded, and that the car was coming at a fast rate of speed; that it was about 200 feet away when he first saw it. William Hartman, a witness for plaintiff, testified that he noticed the milk wagon coming out of the alley on the east side of Jefferson avenue; that it turned a little slanting across the street; that he saw the car coming up from Lafayette avenue (the next cross street north) as the wagon turned out of the alley; that he next observed the motorman apply the brake at about 10 or 15 feet from the wagon; that he "applied the brake easily until the car struck the wagon, and then threw it on with full force, and pushed the wagon about 6 feet along the track, after turning it over, and then backed off." For the defendant, the evidence is that the car was running at about 6 miles per hour; that, when the plaintiff came from the alley on the street, the car was about 150 feet north of him; that the gong was sounded, and that plaintiff drove on the east track, turned south on that track, and drove along it until the car was within 8 or 10 feet of him, when he suddenly turned his horse and drove directly west across the track; that he was so near the car when he turned across that it was impossible to stop the car in time to prevent striking the wagon. Plaintiff testified that he attempted to cross the street for the purpose of delivering milk at No. 1815, on the west side of Jefferson avenue. There is a diagram of the locality in the record, testified by the witnesses to be correct. This diagram shows that the north line of No. 1815 is due west of the south line of the alley, so that plaintiff would have to bear but very slightly to the south to reach No. 1815 from the alley.

M. C. Early, for appellant. Boyle, Priest & Lehmann, for respondent.

BLAND, P. J. (after stating the facts).

Defendant demurred to plaintiff's evidence, which the court denied. The case was submitted to the jury, and a...