Butler v. United Railways Co.
| Citation | 238 S.W. 1077,293 Mo. 259 |
| Parties | MARY BUTLER v. UNITED RAILWAYS COMPANY, Appellant |
| Decision Date | 18 March 1922 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Benjamin J. Klene Judge.
Reversed.
Chas W. Bates, T. E. Francis and G. T. Priest for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence. The evidence conclusively shows that it was plaintiff's own act in lowering her umbrella, so as to cause the same to come in contact with the front end of the car, and thus she alone caused her injuries. (2) The demurrer should have been sustained on the ground that plaintiff was guilty of negligence which either directly contributed to or was the sole and proximate cause of her injuries, and therefore she was not entitled to recover. Tanner v Railroad, 160 Mo. 497; State ex rel. v. Reynolds, 233 S.W. 219.
Hamp Rothwell and Safford & Marsalek for respondent.
The court properly overruled the demurrer to the evidence. (1) A demurrer to the evidence admits as true all evidence in plaintiff's favor and all inferences favorable to plaintiff which may, with any degree of propriety, be drawn therefrom, and in ruling thereon, the court cannot draw inferences in favor of defendant to counterbalance or overthrow inferences in favor of plaintiff. Troll v. Drayage Co., 254 Mo. 337; Scherer v. Bryant, 273 Mo. 602; Buesching v. Gaslight Co., 73 Mo. 219; Maginnis v. Railroad, 182 Mo.App. 694, 268 Mo. 667. (2) The court should sustain the demurrer only when the evidence and inferences to be drawn therefrom, considered in the light of the foregoing rule, are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393. (3) Defendant, in its answer, alleged that plaintiff's injuries were caused by her negligence in going in close and dangerous proximity to the track when she could have seen and heard the approaching car in time to have remained away from the track and thereby have averted the collision. This statement is a solmen admission by which defendant is bound. McKenzie v. U. Rys. Co., 216 Mo. 19; Lynch v. Railroad, 208 Mo. 19; Jewell v. Mfg. Co., 143 Mo.App. 210. (4) Plaintiff's alleged negligence in remaining near the track cannot defeat her right to recover under the humanitarian theory, because the negligence of defendant in failing to stop the car occurred after the plaintiff had placed herself in a position of danger and at a time when defendant, by exercising ordinary care, might have discovered her danger and averted the accident. Bunyan v. Railway, 127 Mo. 19; Fidler v. Railroad, 107 Mo. 645; Werner v. Citizens Ry. Co., 81 Mo. 374; Everett v. Railroad, 214 Mo. 54; Coasting Co. v. Tolson, 139 U.S. 551. (5) The motorman had no right to permit his car to continue running toward the plaintiff at a high rate of speed on the assumption that she would escape from her position of danger when her actions would have made it plainly apparent to him that she was expecting the car to stop and was making no effort to get out of its path. Kinlen v. Railroad, 216 Mo. 159; Eckhart v. Transit Co., 190 Mo. 618; Johnson v. Traction Co., 176 189; McKenzie v. U. Rys. Co., 216 Mo. 23; Shafstette v. Railroad, 175 Mo. 142; Ellis v. Railroad, 234 Mo. 680-1; Dutcher v. Railroad, 241 Mo. 162-3. (6) When the motorman is operating his car in an unlawful manner, he has no right to assume that a person on the street whose safety is endangered by his unlawful conduct will save himself by exercising ordinary care to remain in or get to a place of safety. Powers v. Transit Co., 202 Mo. 269, 283; Gordon v. Railroad, 153 Mo.App. 565-6; Blyston-Spencer v. Ry. Co., 152 Mo.App. 137-8. (7) Under the ordinance introduced in evidence, the motorman was required to stop his car upon plaintiff's signal or request. In the absence of evidence, the law will presume that his failure to stop was due to the fact that he did not see plaintiff, as it cannot be presumed that he deliberately violated the ordinance. Defendant's theory -- that the motorman assumed that plaintiff would get out of the way, and did not stop for that reason -- cannot be considered, because it is without foundation in the facts, and would permit defendant to urge its breach of the law as a defense to plaintiff's action. Hale v. Ry. Co., 230 S.W. 119; Reno v. Railroad, 180 Mo. 482; Bergman v. Railroad, 88 Mo. 678. (8) The fact that the motorman did not see the plaintiff will not exonerate defendant from liability. Ellis v. Railroad, 234 Mo. 673; Waddell v. Railroad, 213 Mo. 16; McQuade v. Railroad, 200 Mo. 158; Hilz v. Railroad, 101 Mo. 53; Eskridge v. Railway, 170 Mo.App. 548; Gilbert v. Railway, 226 S.W. 264.
RAILEY, C. White and Reeves, CC., concur.
This is an action for damages, alleged to have been sustained by plaintiff on account of her having been struck, by one of defendant's cars, while she was waiting to become a passenger thereon, at the southwest corner of Oakland and Macklind Avenues, in St. Louis, Missouri.
The evidence tends to show that on May 21, 1917, plaintiff, then fifty-four years of age, went to the usual stopping place, at the corner of Oakland and Macklind Avenues, in the city aforesaid, about six oclock p. m., for the purpose of boarding one of defendant's eastbound cars on Oakland Avenue. Defendant maintained at the above point two tracks, running east and west. Cars bound west passed over the north track, and those traveling east used the south track. Neither of said avenues near the junction aforesaid had been improved by the city, but were public thoroughfares. There was no regular improved sidewalk where the accident occurred, but cinders had been placed along the south side of the south track aforesaid, and upon which plaintiff was struck and injured as hereafter stated.
At the time of the accident, a heavy rain was falling and it was dark. West of Macklind Avenue the tracks ran slightly up grade to the Forest Park Highlands' entrance. The top of the hill was about two blocks or eight or nine hundred feet west from Macklind Avenue. A car approached from the west traveling twenty-five or thirty miles per hour. Plaintiff testified that she was standing on the cinder walk at a place which she considered was a safe distance from the track; that she had her umbrella raised over her head for protection from the pouring rain; that she never noticed any other people in this vicinity, except a colored man; that she saw the street car, which struck her, from the time it left the above entrance at Forest Park Highlands, until it got close to her; that said car had a headlight and was illuminated; that she just stood there waiting for the car to come; that from the time she first saw the car, until she was struck, she did not move to either the north or south; that when she first saw the car coming, she walked a little further west on the cinder path to the place where she expected to get on; that she thought the car would stop for her and raised her hand to pull down the umbrella, but could not say whether she got it down before being struck; that she gave a signal indicating her desire to board the car by raising her hand; that she was then struck by the car all down her left side and rendered unconscious.
On cross-examination, she testified that while standing on the cinder path she saw a colored man in a little shanty by the side of the fence; that he was back of her, and she turned and faced the tracks; that the locality where the accident occurred was not inhabited; that she did not see any one else there but the colored man; that she could see the car tracks and knew where they were while standing there; that she was looking at the car all the time, after it came over the hill. She further testified as follows:
She further testified that when she raised her hand to signal the motorman, the car was then pretty close to her; that when she started to lower her umbrella the car was from ten to twenty feet away. She further testified:
Mrs. Bessie Tieman testified in behalf of plaintiff, that she was a passenger on the car which injured respondent and was occupying the third seat from the front; that she saw plaintiff "just before the car hit her; that while plaintiff was standing there holding her umbrella she (witness) saw plaintiff about one-half block away. Witness further testified:
She said the car ran about three blocks east after striking plaintiff before it stopped.
On cross-examination witness testified that she saw plaintiff just before the car struck her. She further testified:
Edward Ross testified in behalf of plaintiff, that he was waiting near where plaintiff stood to take the car...
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