Buren v. St. Louis Transit Co.

• Decision Date: 02 February 1904
• Citation: 78 S.W. 680,104 Mo. App. 224
• Court: Missouri Court of Appeals
• Parties: BUREN v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 680

104 Mo. App. 224

BUREN v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

STREET RAILWAYS—PERSONAL INJURIES—COLLISION WITH VEHICLE—CONTRIBUTORY NEGLIGENCE —QUESTION FOR JURY—DRIVING ON TRACK—LIGHTS.

1. A teamster has a right to drive on a street railway track if in doing so he does not unnecessarily interfere with the operation of cars on the track.

2. It was the duty of a street railway company to have its car so lighted as to be seen a safe distance by plaintiff, who was driving on the street, on a dark night, or to sound the gong or give warning of its approach.

3. In an action against a street railway company for injuries to plaintiff, evidence that on a very dark night plaintiff was driving in the street on the left track of the street railway at a rapid speed, when he met and collided with a street car, did not show contributory negligence as a matter of law, but the question was for the jury.

Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by August Buren against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Daniel Dillon and T. F. McDearmon, for respondent.

BLAND, P. J.

Plaintiff was engaged in the business of selling crackers, cakes, bread, etc., to groceries, saloons, etc., in the city of St. Louis, and had a regular line of customers. He owned a wagon and team, with which he made deliveries of goods to his customers. He lived in the northern part of the city on Florissant avenue, and kept his team at his home. In the afternoon of March 26, 1902, he loaded his wagon at a downtown bakery, with the intention of delivering the goods to his customers the next morning. He had with him Henry Herbert, his helper, and on his way home from the bakery picked up Louis Wagoner, who lived near him. There was a saloon on Florissant avenue, from 600 to 800 feet south of plaintiff's home. When plaintiff arrived at the saloon, Herbert, Wagoner, and himself stopped there for 15 or 20 minutes and drank one or two rounds of beer. The three then got on the seat of the wagon, plaintiff on the right, Wagoner in the middle, and Herbert on the left. Plaintiff did the driving. This was about 7:30 o'clock in the evening. It was very dark, and, some of the witnesses say, foggy and drizzling rain. The evidence is that on Florissant avenue, where plaintiff was driving, the defendant has two railway tracks. The one on the east side of the street is laid with T rails so wagons cannot drive on the track. East of this track the street was not improved, and was not used at that time by teamsters, so the only space on the street that could be used by wagons and teams was the west track of the railway and that portion of the street west of the west track which was improved. The evidence is that wagons traveling south were entitled to the right of way on that portion of the street west of the west track. There is also evidence that this part of the street was being cleaned at the time, and there were piles of mud and dirt in it. Plaintiff's evidence is that when he got on his wagon at the saloon he drove eastwardly until he came to the west railway track; that he then turned due north, to drive to his home, with the wheels on the east side of his wagon in the track and one or both of his horses between the rails; that he was driving north in a fast trot, and when he had proceeded 250 or 300 feet from the saloon his wagon was struck by something running south; he did not know what; he was thrown to the ground with such force as to render him unconscious, and was severely injured. The evidence is that the wagon and team met a south-bound car on the west track and collided with the car, in consequence of which one of the horses was killed, the wagon smashed to pieces, its contents broken up and scattered, and plaintiff thrown to the ground; that Herbert and Wagoner were thrown on the front vestibule of the car; and that the car proceeded some 50 or 60 feet after it had collided with the wagon and team. Plaintiff testified that he looked and listened for a car, but he neither saw nor heard one coming. Herbert and Wagoner testified that they were unconscious of the approach or presence of the car until it struck the team and they found themselves landed on the vestibule of the car. The three occupants of the wagon testified that there was no light in the car; that there was no headlight, and the gong or bell was not sounded, nor any warning whatever given of its approach. There was considerable downgrade to the south at the place of the collision; but H. C. Montgomery, an ex-motorman, who had had something over a month's experience as a motorman, testified that a car running at a speed of 8 miles per hour could have been stopped on that grade in from 55 to 60 feet with the brakes, and in 35 feet with the brakes and reverse. There was evidence of the value of the horse killed, the damage to the wagon, and of the extent...