Biermann v. United Rys. Co. of St. Louis

• Decision Date: 03 October 1922
• Docket Number: No. 15385.,15385.
• Parties: BIERMANN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

244 S.W. 94

BIERMANN v. UNITED RYS. CO. OF ST. LOUIS.

No. 15385.

St. Louis Court of Appeals. Missouri.

October 3, 1922.

Rehearing Denied Oct. 24, 1022.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Suit by George O. Biermaun against the United Railways Company of St Louis, Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates and T. E. Francis, both of St. Louis, for appellant.

Frank X. Hiemenz, of St. Louis, for respondent.

BRUERE, C.

Plaintiff, who is respondent here, sues for damages for personal injuries received in a collision between his wagon and a street car of the defendant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, and defendant has appealed.

The negligence alleged in the petition, and upon which the case was submitted to the jury, is: (1) The running of the street car at a speed in excess of 10 miles per hour in violation of the Ten-Mile Speed Ordinance; (2) violation of the Vigilant Watch Ordinance; (3) failure of the motorman, in charge of the car, to exercise ordinary care to avert the injury after he saw, or by the exercise of ordinary care could have seen, the perilous position of plaintiff.

The answer is a general denial and a plea that plaintiff negligently drove upon the track without looking or listening for approaching cars thereon, when by looking he could have seen and by listening he could have heard the approaching car in time to have remained off the track and thereby have averted the collision.

The errors assigned in this court relate to the refusal of the court to direct a verdict for the defendant and to the giving and refusing of instructions.

The facts in the case, so far as they are pertinent to the questions raised upon this appeal, are these:

The collision occurred in the month of May, at 5:50 p. m., at the intersection of Nineteenth and Olive streets in the city of St. Louis. Nineteenth street runs north and south and crosses Olive street at right angles. Eighteenth street is east of and runs parallel with Nineteenth street. The distance from Nineteenth street to the west line of Eighteenth street is about 350 feet. The width of the roadway of Nineteenth street is 36 feet. The width of the sidewalk between the building line and the curb time on the east side of Nineteenth street is twelve feet. The width of the sidewalk between the building line and the curb line on the north side of Olive street east of Nineteenth street is 13 feet 10 inches.

The defendant maintains a double-track street car line on Olive street. The northern track is used for west-bound cars. The distance from the curb line on the north side of Olive street to the north rail of the westbound track is 10 feet 8 inches. The distance between the north and south rails of the west-bound track Is 4 feet and 10 inches, and the distance between the south rail of the west-bound track, and the north rail of the east-bound track is 5 feet and 4 inches. There is a grade of 4 per cent. between the west line of Eighteenth street and the east line of Nineteenth street.

The plaintiff was driving a two-horse team to an express wagon southwardly along Nineteenth street, and about 5 feet distant from the west curb, and while crossing Olive street, and when on defendant's west-bound track, a west-bound car collided with the wagon, striking it at the brake block, immediately in front of the rear wheel, resulting in injury to the plaintiff.

The distance from the horses' heads to the end of the wagon was 25 feet. Plaintiff sat at the dashboard, 10 feet from the horses' heads. The brake block, where the wagon was struck, was 7 feet back of plaintiffs seat.

Regarding the manner in which the accident occurred, plaintiff testified as follows:

"Q. Mr. Biermann, when you were coming down Nineteenth street on this occasion and approaching Olive, how fast was your team going? A. I had them on a walk. * * *

"Q. How many miles per hour could a team walk? A. I should judge about 4 miles. * * *

"Q. Now, when you approached Olive street on this day, did you look eastwardly to see if a car was coming from the east? A. Yes, sir.

"Q. Did you see a car? A. Yes, sir; It saw it upon Eighteenth street.

"Q. Did you see a car? A. Yes, sir.

"Q. Where was it when you looked? A. Crossing Eighteenth street.

"Q. Crossing Eighteenth street? A. Yes, sir.

"Q. Where was your wagon at that time?

A. My wagon was—there was a stake wagon in front of me, and my team was a little bit to the side of the stake wagon, to the west side or the right side.

"Q. To the west side; where were your horses' heads, in reference to the north rail of the west-bound track, when you looked up and saw this car? A. The horses' heads was— I was just coming over the track, was going west.

"Q. You mean you were getting the horses' heads over the west-bound track? A. Yes, sire over the west-bound track.

"Q. And your horses' heads were in the westbound track? A. Yes, sir.

"Q. And you saw this car coming over Eighteenth street? A. Yes, sir.

"Q. Did you look before that at any time? A. Well, I always did look going up there.

"Q. Did you see a moving car when you looked? A. I saw a car at Eighteenth street, crossing Eighteenth street; yes, sir.

"Q. You say your horses were in the westbound track and the car was crossing Eighteenth street? A. Yes, sir.

"Q. And you were following this stake wagon? A. Yes, sir.

"Q. And that was still on the track, I believe? Yes, sir.

"Q. Now, what next happened? A. Well, the next thing I turned around to look to see where the car was, and the car was then, I should judge, in about 5 feet of me.

"Q. About 5 feet of you? A. Yes, sir; never at no time

"Q. How fast was the car going, advancing? A. Why, he was going about 25 or 30 miles an hour then.

"Q. You had a chance to observe the speed of the street cars? A. Yes, sir.

"Q. Did you notice a car running when you would see one run? A. Yes, sir.

"Q. You got the car running at 25 or 30 miles an hour and 5 feet from you? A. Yes, sir.

"Q. What happened then? A. Why, the car hit me: hit the hind end of the wagon.

"Q. Which hind end? A. The east end of the wagon.

"Q. Of course, the east end; it must have been the east end; the right or left hand? A. Near the left; the left hind wheel; right at the block.

"Q. Right at the brake block? A. Yes, sir.

"Q. What happened to you? A. I was thrown from the wagon.

"Q. Where did you fall? A. I fell over towards the curb at Nineteenth and Olive.

"Q. Which corner? A. South—southwest corner.

"Q. Were you stunned? A. Yes, sir; for a moment.

"Q. Now, was the wagon shoved any distance by the impact of the car? A. Why, it was shoved about 6 or 8 feet.

"Q. Carried 6 or 8 feet? A. Yes, sir. * * * On cross-examination he testified as follows:

"Q. From where you were sitting, and I believe you said that the first time you saw this street car, the first time you looked for it was when you were on the track and looked up and saw the street car at Eighteenth street? A. When I was approaching the track; yes, sir.

"Q. And where were the horses' heads at that time? A. The horses' heads were about approaching the track going west.

"Q. Track going west or the track going east? A. The track going west. * * *.

"Q. Now, then, the first time that you looked for a car was when you saw it up there at Eighteenth street, wasn't it? A. When I saw it at Eighteenth street; yes, sir.

"Q. And then it was when, as you say, that your horses were just about entering the westbound track? A. They were just coming towards—they were on the west-bound track.

"Q. They were on the west-bound track? A. They were on the west-bound track.

"Q. How far were you from the inner rail of the west-bound track at that time? A. I was about 10 feet.

"Q. About 10 feet? A. Yes, sir.

"Q. So that, considering the length of the pole or the tongue of the wagon, the horses' heads would be just about on the track then? A. Yes, sir.

"Q. And the car was crossing Eighteenth street? A. Yes, sir.

"Q. Then you did not stop there, did you at all? A. No, sir. * * *

"Q. How far did that car run, Mr. Biermann, from the time that it struck you until it stopped? A. Why, it run up about to the westbound crossing, a little beyond it.

"Q. How far would that be? A. Why, I should judge about 5 feet. * * *

"Q. You did not see the car from the time, then, it left Eighteenth street tracks, until it was within 5 feet of you? A. saw the car coming down, yes, sir; I looked up there, saw the car coming down, and tried to get the team out of the way. * * *

Lucille Schram, a passenger on the car in question and a we tress for plaintiff, testified that when plaintiff's wagon was on the westbound track the front of the street car was about in the middle of the block, between Eighteenth and Nineteenth streets, and running between 2C and 25 miles an hour.

John F. Wood testified on behalf of the plaintiff that at the time of the accident he was standing on the rear end of a stake wagon which was being driven southwardly on Nineteenth street across Olive street, and about 2 feet ahead of plaintiff's wagon; that when plaintiff's horses were on the westbound track the front end of the street car was about in the middle of the block and approaching at a speed of 20 miles per hour.

There was a difference in the estimates given by defendant's witnesses as to the distance the car was from the point of contact when the horses were on the west-bound track, the estimates ranging from 18 to 40 feet.

The testimony of defendant's witnesses as to the speed of the car ranged from 2 to 8 miles per hour.

There was testimony adduced tending to show that the car, under the conditions prevailing at the time of the accident, if running six or seven miles an hour, could have been stopped in 12 feet; 10 miles an hour in 30 feet; 25 miles an hour in 110 feet; and 30 miles an hour in 150...