Byram v. East St. Louis Ry. Co.

• Decision Date: 02 June 1931
• Docket Number: No. 21450.,21450.
• Citation: 39 S.W.2d 376
• Parties: BYRAM v. EAST ST. LOUIS RY. CO.
• Court: Missouri Court of Appeals

39 S.W.2d 376

BYRAM v. EAST ST. LOUIS RY. CO.

No. 21450.

St. Louis Court of Appeals. Missouri.

June 2, 1931.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by Joseph Byram, administrator of the estate of Herriett I. Byram, deceased, against the East St. Louis Railway Company. From the judgment, defendant appeals.

Affirmed.

Holland, Lashly & Donnell, of St. Louis, for appellant.

N. Murry Edwards and Robert A. Harris, both of St. Louis, for respondent.

BENNICK, C.

This is an action brought by Joseph Byram, as administrator of the estate of his deceased wife, Herriett I. Byram, to recover damages for her death, which resulted from injuries sustained by her in a collision between an automobile in which she was riding, and a street car owned and operated by defendant, East St. Louis Railway Company. The accident occurred at the intersection of Twenty-Ninth and State streets, in East St. Louis, Ill., on April 15, 1928. Upon a trial to a jury in the circuit court of the city of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $7,000; and, following the overruling of its motion for a new trial, defendant has duly appealed.

The petition alleged the appointment and qualification of plaintiff as administrator; that the deceased had left surviving her as her only heirs at law, the plaintiff, her husband, and four children, consisting of a married daughter twenty-five years of age, and three unmarried sons, nineteen, sixteen, and thirteen years of age, respectively; and that plaintiff had brought the present action on behalf of said heirs.

The negligence pleaded, and left standing in the case at the time of its submission to the jury, was: First, the act of defendant, through its motorman, in running and operating the street car at a careless and negligent rate of speed, and at a greater rate of speed then was reasonable, having regard to the time, place, and circumstances; second, the slowing down of the street car, following which its speed was increased as it approached the point of collision; and third, the failure of the motorman to keep a watch ahead for vehicles, and particularly the vehicle in which plaintiff was riding, so that upon the first appearance of danger, he might have sounded a warning, slackened the speed of the street car, or have stopped the same, and thereby have avoided a collision.

The wrongful death statute of Illinois was duly pleaded; it was then alleged that plaintiff had been caused to expend the sum of $400 for hospital and medical bills, and $604 for funeral expenses; and the petition concluded with a prayer for damages in the sum of $10,000.

In view of the limitation placed upon the issues on this appeal, it will suffice to say of the answer that it was a general denial, coupled with a plea of contributory negligence; and of the reply, that it served to put all such new matter at issue.

The evidence disclosed that Twenty-Ninth street runs generally north and south, and State street, east and west, the former being about twenty-five feet, and the latter fifty feet, in width. State street has double car tracks upon it, for eastbound and west-bound cars, with a space of some six feet between the inner rails of the two tracks, and spaces of from fifteen to eighteen feet from the outer rails to the curbs on either side.

The accident happened shortly after seven o'clock in the evening. Plaintiff, his wife, and one of the sons, had been visiting the married daughter; and, having left her home, they were driving northwardly in a Ford coupé on Twenty-Ninth street towards State street, en route to their own home on north Thirty-Fifth street. Plaintiff was driving, his wife was sitting on the extreme right, and the son was sitting in between the two.

It seems that Twenty-Ninth street north of State street is but little more than an alley, seldom used for automobile traffic, and that northbound traffic ordinarily turns west on State street for a distance of seventy-five feet to its intersection with Twenty-Eighth street, and then follows the latter course to the north. There are car stops at both Thirtieth and Twenty-Eighth streets, but none at Twenty-Ninth street, at least for westbound cars. From Twenty-Ninth street east to Thirtieth street is an ordinary city block, approximately four hundred feet in length.

Plaintiff was driving near the center of Twenty-Ninth street, preparatory to making a left turn into State street; and when the front of his automobile was within five or six feet of the south line of State street, he made the boulevard stop which was called for by a sign erected at the corner. Looking to his right, he saw a westbound car in the act of starting up at Thirtieth street; and observing its course until it came to about the middle of the block, he noticed that it began slowing down, and, in fact, that it did slow down almost to a standstill, as if to permit him to pass ahead of it. He thereupon pulled out into State street to a point where the front of his automobile was upon the inner rail of the eastbound track, and therefore about six feet from the westbound track, when he discovered that the street car, which had then approached within six or eight feet of him, had meanwhile increased its speed to as much as fifteen or twenty miles an hour.

Plaintiff was then driving at a speed of eight or ten miles an hour, and he testified that he would have required a space of eight or ten feet in which to have stopped. Realizing the imminence of his peril, and knowing that he would have no chance to get across the westbound track ahead of the car, he applied his brakes, and at the same instant attempted to swerve sharply to the left, but not in time to avoid a collision, the front of the street car hitting his automobile to the rear of the right front wheel, and thereafter running about thirty feet before the car could be stopped.

Through the force of the collision, the door on the right side of the automobile was forced open, and plaintiff's wife was thrown out upon the street, whereby she suffered the injuries which later resulted in her death.

Other evidence was that it was a clear day, and that the streets were dry; that the street lights were on, as were also the headlights of both the street car and the automobile; that it was not yet dark, so that independent of any lights, either the street car or the automobile could have been seen for a distance of a city block; that there was no intervening traffic between the two vehicles; and that plaintiff heard no warning signal by bell or gong from the street car before the collision.

Plaintiff testified further that he and his wife had lived together continuously from the time of their marriage in 1896; that she had at all times attended to all the household duties for the family; and that on account of her death he had been forced to expend the sum of $61.35 for hospital bills, $605 for funeral bills, $30 for the services of a nurse, $36 for railroad fare, and $24 for additional expense in connection with the funeral.

The motorman testified that he had made a stop at Thirtieth street to discharge passengers; that he then proceeded forward until he attained a speed of twenty-five miles an hour; that when he was within one hundred twenty-five feet of Twenty-Ninth street, he slowed down his speed to about five miles an hour; that when he came to the edge or east line of Twenty-Ninth street, he glanced around, and seeing nothing ahead of him, he increased his speed to about fifteen miles an hour; that the car went about twenty-five feet further until plaintiff's automobile ran into the left side of it; that he stopped the car thereafter in sixteen feet; and that he at no time had seen plaintiff's automobile prior to the collision, though he admitted that he could have seen an object as large as an automobile for as much as a block away, independent of his headlight.

Since the cause of action accrued in the state of Illinois, though suit may properly be maintained thereon in this state (sections 705, 706, R. S. 1929), the substantive rights of plaintiff are to be measured by the law of that state as construed by its courts of last resort, and not by the law of Missouri. Woodard v. Bush, 282 Mo. 163, 220 S. W. 839; Sing v. St. Louis-S. F. Ry. Co. (Mo. Sup.) 30 S.W.(2d) 37; Jackson v. St. Louis-S. F. Ry. Co. (Mo. App.) 31 S.W.(2d) 250. As has been heretofore indicated, the wrongful death statute of Illinois was pleaded in haec verba in plaintiff's petition, and consequently, under the legislative mandate expressed in section 806, R. S. 1929, we take judicial notice, not only of the statute itself, but also of the interpretation placed upon it, and the construction given it, by the courts of that state. Ramey v. Missouri Pacific R. Co., 323 Mo. 662, 21 S.W.(2d) 873; Noell v. Chicago & E. I. Ry. Co. (Mo. App.) 21 S.W. (2d) 937; First National Bank of Mission, Texas v. Gordon (Mo. App.) 6 S.W.(2d) 60.

The Illinois statute (Cahill's 1925 Illinois Revised Statutes, Chapter 70, page 1358, pars. 1 and 2), as the same is set out in the petition, reads as follows:

"1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.

"2. Every such action shall be brought by and in the names of the personal representatives of such deceased person and the amount recovered in every such action shall be for the exclusive benefit of the...