Brockschmidt v. St. Louis & M. R. R. Co.

• Decision Date: 11 June 1907
• Citation: 103 S.W. 964,205 Mo. 435
• Court: Missouri Supreme Court
• Parties: BROCKSCHMIDT v. ST. LOUIS & M. R. R. CO.

103 S.W. 964

205 Mo. 435

BROCKSCHMIDT v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

STREET RAILROADS — PERSONS ON TRACK — DEATH — CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate, who was engaged in improving a street on which double street car tracks were laid, with knowledge that cars were passing over the track every few minutes, took a position on the east-bound track with his back toward the west, and continued in this employment, without turning his face to the west or giving any attention to the approach of cars, until he was struck by an east-bound car. Held that, in the absence of any claim that the motorman's act in striking intestate was willful or wanton, or that he was running his car at an excessive rate of speed, intestate's negligence directly contributed to his injury and precluded a recovery.

Appeal from Circuit Court, St. Charles County; H. W. Johnson, Judge.

Action by Eliza Brockschmidt against the St. Louis & Meramec River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

This cause is now pending before this court upon appeal by the defendant from a judgment rendered in the circuit court of St. Charles county, Mo. This suit was originally instituted in the circuit court of St. Louis on the 11th day of September, 1902. The cause was removed upon the application of the plaintiff to St. Charles county, Mo., where it was finally tried at the February term of said court. This is an action in which the plaintiff is seeking to recover of the defendant $5,000 as a statutory penalty for the wrongful killing of her husband. The plaintiff's petition states, in substance, that she was the lawful wife of Herman Brockschmidt at the time of his death; that the defendant is a corporation under the laws of the state of Missouri, and used and operated a street railway in the city of St. Louis, over and along Manchester avenue, and at and near its intersection with Mitchell avenue, both upon public streets; that on the 13th day of August, 1902, the plaintiff's said husband was on Manchester avenue, at or near the intersection of Mitchell avenue, in the city of St. Louis, engaged in removing dirt which had fallen upon said street, when the defendant's motorman and conductor in charge of its east-bound car on Manchester avenue carelessly and negligently, and without using any care to control or stop the said car to prevent its striking the said Brockschmidt, and without keeping any watch or lookout to see the persons on said street, and without giving any warning by bell or otherwise to the said Brockschmidt of the approach of said car, and whilst running the said car at a high and negligent speed, caused and suffered said car to strike and injure said Brockschmidt, so that he died from said injuries on said day. The plaintiff then pleaded an ordinance of the city of St. Louis, which provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot, either upon street railway tracks or moving toward them, and upon the first appearance of danger to such persons the cars should be stopped within the shortest time and space possible, although at the time and before the injuries to her husband the aforesaid motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible, which violation of said ordinance directly contributed to cause the injury and death of the plaintiff's husband. The prayer of the petition was for $5,000 and the statutory penalty for the killing of the said Brockschmidt. The defendant's answer was a general denial, and a further plea that whatever injuries were sustained by the said Brockschmidt were caused by his own contributory negligence, in that, while an east-bound car of defendant was approaching, he carelessly and negligently stepped near and upon the east-bound track of defendant, immediately in front of said car, without first looking and listening to ascertain whether a car was approaching in an easterly direction, and that said negligence on the part of plaintiff's husband directly contributed to cause whatever injuries, if any, were sustained by him on said occasion. The reply was a general traverse of the averments in the answer.

The testimony developed at the trial tended to show about this state of facts concerning the killing of plaintiff's husband by the defendant's car: At the time of the death of plaintiff's husband, Herman Brockschmidt, the defendant, St. Louis & Meramec River Railroad Company, was maintaining a doubletrack electric railway system on the south side of Manchester avenue, in the city of St. Louis. Manchester avenue runs east and west; cars moving west on the north and east on the south track. Just south of Manchester avenue is the right of way and tracks of the Missouri Pacific Railway Company. Streets run into Manchester on the north, but not through. On the 13th day of August, 1902, at about 6 o'clock in the afternoon, the plaintiff's husband was acting as foreman of a gang of men engaged in excavating along the right of way of the Missouri Pacific Railway Company, and south of defendant's tracks, over which wagons were continuously hauling dirt. It was a bright, clear afternoon. In passing over the rails of the defendant's tracks, dirt would naturally fall off the wagons and would accumulate on the rails. This work of hauling dirt across the defendant's tracks had been going on for about three weeks before the injury. According to the testimony of the witnesses on the part of the plaintiff, as an east-bound car approached, the deceased was engaged in shoveling dirt off the south rail of the defendant's east-bound track, with his back toward the west, facing the east, and standing astride the south rail. He had been in that position from two or five minutes before he was struck by the defendant's car. The testimony tended to show that the noise and rumbling of the car as it approached could be heard for some distance away, and some of the witnesses who were present testified that they heard the noise and rumbling of the car as it approached. The plaintiff testified that she was the wife of Herman Brock-schmidt, deceased, and that Manchester avenue had been an open public street in the city of St. Louis for more than 20 years, and that she had known it that long; that her husband at the time of his death on the 13th of August, 1902, was a very healthy man, had never been sick, and his sight and hearing was as good as a young man of 20 years; that her husband was injured about 6 o'clock, and that he died at the hospital about two hours later; that her husband was a contractor, engaged in the business of taking contracts for grading and city work and for doing work connected with putting in streets, and had lived on Manchester avenue 20 years, and was living there when the tracks were first put down; that their residence was about a block from Manchester avenue, and that the noise of the cars running on the tracks could be heard from their residence; and that, standing on the front porch of their residence, she had frequently heard the noise and rumbling of the cars on Manchester avenue. There is no dispute in the testimony that the deceased, had he looked, could have seen the car coming, for other witnesses who were present did see it; and on the other hand, that the motorman could see the deceased on the track. The evidence further tended to show that the deceased was familiar with the operation of the cars, and it further appears that cars ran along there on Manchester avenue every five or ten minutes, and sometimes at longer intervals. The evidence on the part of the plaintiff further tended to show that the car was running at an ordinary speed of from 5 to 8 miles an hour, and that the deceased stood with his back toward the west and his face toward the east whilst at the work of shoveling dirt off the track, with his left foot inside or between the rails of the south or east-bound track and his right foot outside or south of the south rail. Some of the witnesses for the plaintiff testify that, when the car was within 8 or 10 feet of the deceased, the motorman hallooed or gave him a warning to get out of the way. Witness John Schultz, for the plaintiff, said that this exclamation or warning was in a loud tone of voice; that he heard it 150 feet away. This same witness testified that deceased, in shoveling this dirt, was not doing anything unusual; that he had seen him doing the same thing every day. He further testified that the men in doing this work did not ordinarily stop their work until the car got very close to them. One of the witnesses for the plaintiff, Charles Becker, testified that he saw the car strike the deceased, which resulted in his death, and that he observed the car about 10 or 15 feet before it reached the deceased, and he saw the motorman applying the brakes with both hands. Upon cross-examination he said he did not know whether the motorman had been applying the brakes prior to the time he observed him or not. The witnesses for the plaintiff testified that they did not hear any gong or bell rang. However, with the exception of one of them, they say that they would not testify that a bell or gong was not sounded, but simply state that they did not hear it. One of the witnesses for the plaintiff, Frank Harrison, testified that the motorman did not give any signal by bell or otherwise, but that he heard him give the verbal warning "to get out of there."

The evidence on the part of the defendant tended...