Butler v. United Rys. Co. of St. Louis
| Decision Date | 18 March 1922 |
| Docket Number | No. 22715.,22715. |
| Citation | 293 Mo. 259,238 S.W. 1077 |
| Parties | BUTLER v. UNITED RYS. CO. OF ST. LOUIS. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; Benjamin Klene, Judge.
Action by Mary Butler against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.
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, Mo.
The evidence tends to show, that, on May 21, 1917, plaintiff, then 54 years of age, went to the usual stopping place at the corner of Oakland and Macklind avenues in the city aforesaid, about 6 o'clock 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 2 blocks or 800 or 900 feet west from Macklind avenue. A car approached from the west traveling 25 or 30 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 10 to 20 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 which injured her; that, as the car approached plaintiff, she lowered her umbrella; that when he first saw plaintiff, "she was standing about two or three feet from the track"; that he did not think plaintiff moved from the first time he saw her until "she was struck by the car; that he did not see her move; that she was struck with the corner of the car and knocked up on the embankment; that it was the southeast, or right-hand corner of the car which struck her; that it knocked her about 10 or 12 feet. On cross-examination, witness testified that he was standing about 6 or 7 feet from plaintiff; that when she started to lower her umbrella the car was pretty close to her.
W. P. Smith, in behalf of plaintiff, testified as an expert, that the car in question traveling 25 miles per hour could have been stopped in about 90 to 95 feet; that going 30 miles per hour, it could have been stopped in about 130 to 135 feet.
It was admitted, by defendant, that its cars usually stopped at the junction of said avenues, at the southwest corner for passengers going east.
Over the objection of defendant, the court admitted in evidence the second section of Ordinance 2386 of the City of St. Louis, Mo., which reads as follows:
Speed ordinance of said city, numbered 2381, was offered in evidence by plaintiff, which fixed the speed limit in one part of the city at 10 miles, and in the other portion of said city at 15 miles per hour.
At the conclusion of plaintiff's evidence, defendant interposed a demurrer thereto, which was overruled. Appellant stood upon said demurrer, and declined to offer any evidence in the case.
The instructions and rulings of the court will be considered, as far as necessary, in the opinion. The jury returned a verdict in favor of plaintiff for $15,000 and judgment was entered accordingly. Appellant, in due time, filed its motion for a new trial, which was overruled, and the cause duly appealed by it to this court.
Chas. W. Bates, T. E. Francis, and G. T. Priest, all of St. Louis, for appellant.
Hamp Rothwell and Safford & Marsalek, all of St. Louis, for respondent.
RAILEY, C. (after stating the facts as above).
I. The case is here upon appellant's demurrer to the evidence. The facts relating to the merits of the controversy are set out very fully in the foregoing statement, and will only be referred to again in a general way, as occasion may require.
Plaintiff, in her statement of the case, avers that it was submitted to the jury under the humanitarian rule charged in petition, to wit:
"That plaintiff was in a position of imminent danger and peril near defendant's track, where she was likely to be struck by the approaching car, and that she was oblivious to her said danger; that defendant, by exercising ordinary care, could have known of plaintiff's danger and of her obliviousness thereto in time to have averted her injury by exercising ordinary care to stop said car, but negligently failed to do so."
No other issue was submitted to the jury, except that relating to the damages claimed. Said instruction undertook to cover the whole case, and authorized a recovery regardless of plaintiff's negligence.
Respondent testified that when she stopped on the cinder path at the junction of Oakland and Macklind avenues to take the eastbound car on the south track, about 6 o'clock p. m., on May 21, 1917, it was pouring rain and she had her umbrella raised for protection; that she stopped at a place she considered a safe distance from the track, and remained there without moving, while said car ran 800 or 900 feet and struck her; that the car was illuminated, and she saw it while traveling the above distance, until it came within about 20 feet of her; that she then signaled the motorman to stop the car, by raising her hand; that she thereafter attempted to lower her umbrella, and was struck by the car on the left side of her head, body, etc.
The evidence tends to show that the car...
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