Bensiek v. St. Louis Transit Co.
| Decision Date | 14 May 1907 |
| Citation | 102 S.W. 587,125 Mo.App. 121 |
| Parties | BENSIEK, Respondent, v. ST. LOUIS TRANSIT COMPANY and THE UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.
REVERSED IN PART AND AFFIRMED IN PART.
Judgment reversed in part and affirmed in part.
Boyle & Priest, George W. Easley and Edward T. Miller for appellants.
The demurrer to the evidence should have been sustained. McGauley v. Transit Co., 179 Mo. 583; Reno v Railway, 180 Mo. 469; Roenfeldt v. Railway, 180 Mo. 534; Theobald v. Transit Co., 191 Mo. 395; Zurfluh v. Railway, 46 Mo.App. 636; Cogan v Railway, 101 Mo.App. 179. The first is, there was no evidence to show any connection of the United Railways Company with the railway line or car in question. R. S. 1899, sec. 1187; Eyre v. Jourdan, 111 Mo. 428; 1 Beach on Private Corporations, sec. 367; 3 Thompson on Corporations, sec. 588; Mr. Freeman's Note, 71 Am. Dec. 297; Arrowsmith v. Railroad, 57 F. 165; 3 Wood's Railway Law, sec. 490; Nellis on Street Surface Railroads, p. 266, sec. 16; 2 Elliott on Railroads, p. 605, sec. 469. Plaintiff's instruction numbered 1 is erroneous and should not have been given. The third paragraph of the instruction is erroneous, because there is no evidence from which the jury could fairly find that the motorman saw, or could have seen, the wagon and team on the track in a position of peril in time to control the speed of the car and avoid the collision. Reno v. Railroad, 180 Mo. 469; Holwerson v. Railroad, 157 Mo. 216.
Albert E. Hausman for respondent; Robert L. Shackelford of counsel.
(1) Appellant contends that the driver was guilty of such negligence as precluded a recovery, and hence a demurrer to the evidence should have been sustained. The facts are that the driver waited at the lunch stand for a north-bound car to pass him; then he looked south along the track; seeing no car in sight he drove onto the track and continued north thereon for a distance of four hundred and seventy feet at a speed of five miles per hour--in other words he drove north on that track for fifty-five seconds, when he was struck from the rear. That this was not such negligence as would defeat a recovery in this action is shown by the cases of Morgan v. Railroad, 159 Mo. 262; Grocery Co. v. Railroad, 89 Mo.App. 391; Barrie v. Transit Co., 102 Mo.App. 92; Kolb v. Transit Co., 102 Mo.App. 143; Biscuit Co. v. Transit Co., 82 S.W. 288; Degel v. Transit Co., 101 Mo.App. 56; Moritz v. Transit Co., 102 Mo.App. 557; Dairy Co. v. Transit Co., 103 Mo.App. 90; Scullin v. Railroad, 82 S.W. 760; Woods v. Railroad, 86 S.W. 1082. (2) Again plaintiff's case is predicated upon the theory that defendant's motorman either saw, or by the exercise of ordinary care would have seen plaintiff's position of peril in time to have averted the injury by the exercise of ordinary care. If there was evidence to sustain this hypothesis, then the rule as laid down in Klockenbrink v. Railroad, 172 Mo., is applicable.
The suit is for damages to plaintiff's team, a wagon and harness, occasioned by the street car having collided therewith. The petition is in proper form. Its allegations support and the evidence tended to prove the following facts. Plaintiff, who is the proprietor of a livery stable in the city of St. Louis, owned the team, wagon and harness mentioned, and the same were in charge of her driver, on the night in question. He was seated in the front end of the wagon, driving the team north on south Broadway, toward the city, immediately outside the city limits in St. Louis county, when a street car, operated by the defendant St. Louis Transit Company, running at from twelve to fifteen miles per hour, from the south, collided with the rear end of the wagon, from which collision the wagon was demolished, one horse was killed, the other injured, and the harness practically destroyed. The night was dark. It had been raining and was then misting some. The plaintiff's driver was returning from St. Rose Hospital in the county near the city limits, about 10:30 p. m. He drove along the east side of south Broadway, a public thoroughfare, in which is located defendant's double car tracks, for probably five hundred feet, until he reached a point where the recent rains had washed gullies along the side thereof, rendering it unsafe for travel. When he encountered the gullies, he drove on defendant's track occupied by its north-bound cars, which track was macadamized between the rails. Immediately before and while in the act of driving upon the track, he looked to the south and listened for an approaching car, and seeing none, continued to drive northward on the track at about five miles an hour, for a distance of four hundred and seventy feet, when a north-bound car, running at from twelve to fifteen miles an hour, collided with the rear end of the wagon causing the damage sued for. The team was white. The wagon was what is termed an ordinary undertaker's wagon. It was black and seems to have been a covered wagon with a door in the rear end in which was a window about twelve inches wide and two feet high, and inside the wagon, immediately above the driver's seat, was a double reflector bulls-eye lantern. This lantern was lighted at the time. It reflected a white light in the front to the northward, and a red light about the size of a silver dollar, toward the south, discernible from the window in the rear. One witness testified this red light was noticeable three hundred feet, and another noticed it at the time of the collision for one hundred and fifty feet from the rear. A street light was burning about forty feet north and five feet east of the point of collision. The road and street car track was straight for a distance of eight hundred feet south, the direction from which the car approached. After having looked and listened, and neither seeing nor hearing a car, the plaintiff continued on the track for four hundred and seventy feet, at five miles an hour, or, as calculated, about one minute, and during that interval, he did not look a second time for danger prior to the collision. Defendant's tracks at the point mentioned, incline to the northward slightly. The car was equipped with air-brakes and also with other appliances for emergency stops. It contained no passengers nor was it otherwise loaded. An expert motorman testified it could have been stopped with the appliances at hand, under the conditions then prevailing at the point in question, with its air-brake, when running at twelve miles per hour, in eighty-five to ninety feet; at the same speed, by using the emergency appliances, it could have been stopped in forty-five feet. At the rate of fifteen miles per hour, it could have been stopped by using the air-brake, in one hundred and twenty to one hundred and fifty feet, and by using the emergency appliances, in ninety-five feet. While running at twelve miles per hour, its speed could have been reduced to five miles an hour, that of the wagon, in twenty-five feet. At fifteen miles per hour, its speed could have been reduced to five miles an hour with the emergency appliances, in forty-five feet, and all with safety to the car and those on board. The car ran fifty or sixty feet north after colliding with the wagon before it was stopped. These are all the material facts as to the collision.
As said before, the car was under the actual control of the St. Louis Transit Company, by whom it was being operated. There was no evidence whatever connecting the defendant United Railways Company with the operation of the car. The case was tried on the theory that the United Railways Company owned the car and its liability was sought to be established on the principle of agency; that is to say, it was insisted the St. Louis Transit Company, the lessee, was the agent of the United Railways Company, the owner, and that the United Railways Company was liable as principal for the negligent act of its agent, operating its road, in support of which plaintiff introduced in evidence a written lease dated September 30, 1899, a copy of which may be found in Moorshead v. United Railways Co., 119 Mo.App. 541, 96 S.W. 261, whereby the United Railways Company, as owner, leased and demised its lines and cars with competent legislative authority so to do, to the St. Louis Transit Company, in consideration of certain reservations of rent and valuable considerations therein mentioned, for a term of forty years. This lease and no other evidence was introduced tending to connect the United Railways Company with the road, its management or its operation of the car.
Defendants introduced no evidence. The court declined to direct a verdict for them and referred the issues to the jury under instructions.
1. The car was being operated...
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