Campbell v. St. Louis & Suburban Ry. Co.

• Decision Date: 27 May 1903
• Citation: 75 S.W. 86,175 Mo. 161
• Court: Missouri Supreme Court
• Parties: CAMPBELL et ux. v. ST. LOUIS & SUBURBAN RY. CO.

75 S.W. 86

175 Mo. 161

CAMPBELL et ux. v. ST. LOUIS & SUBURBAN RY. CO.

Supreme Court of Missouri, Division No. 1.

May 27, 1903.

STREET RAILROAD — CROSSING ACCIDENT — NEGLIGENCE — DRIVER — CONTRIBUTORY NEGLIGENCE — DUTY TO STOP — ORDINANCES — PROOF — EVIDENCE — COMPETENCY — INSTRUCTIONS.

1. In determining whether a 16 year old boy, killed by a street car while driving over a crossing, was guilty of contributory negligence, his conduct is to be measured by the standard of an ordinarily prudent boy of his age, and not by that of a man of mature years.

2. Whether a 16 year old boy, killed by a construction car while attempting to drive across a street car track at a street crossing, was guilty of contributory negligence, held, under the evidence, to be a question for the jury.

3. Where both parties to an action against a street railway for negligent death tried the case on the theory that defendant was not liable for a violation of the ordinances governing the running of street cars, unless it was shown that it had agreed to be bound by such ordinances, an ordinance showing such an agreement on the part of defendant was relevant.

4. By accepting St. Louis Ordinance No. 19,393, granting to defendant a franchise for a branch on condition that it complies with all the general ordinances and charter provisions in relation to street railroads then in force or thereafter to be enacted, and "applicable to its entire line of railroad, or any part thereof," defendant agreed to be bound by all the ordinances relating to street railroads, not only as to the branch, but as to its entire line, if such agreement was necessary.

5. Under the express provisions of Rev. St. 1899, § 3100, a volume of ordinances purporting to be published by authority of a city is admissible as evidence of an ordinance contained therein.

6. St. Louis Ordinance No. 15,954, granting to defendant a franchise to construct a line over certain streets and alleys, and authorizing it to run cars on that part at a rate of 20 miles an hour, is not in violation of City Charter, art. 3, § 28, providing that no special or general ordinance in conflict or inconsistent with a prior ordinance shall be valid until such prior ordinance, or its conflicting point, is repealed by express terms, as it does not attempt to repeal the general ordinance limiting the speed of street cars to 8 miles an hour, but only makes an exception to its operation, having it in full force as a general rule.

7. On a mere showing that a person had for 20 years the common experience of a city man traveling on street cars, he was not competent to give an opinion as to the speed of a car, based on the noise heard at a distance of more than 120 feet.

8. Where there was no evidence available to plaintiff in an action for negligent death to support the hypothesis that defendant's motorman failed to stop on the first appearance of danger to the deceased, it was error to instruct that, under an ordinance, defendant's motorman was bound to stop on the first appearance of danger, and was negligent if he failed to do so.

9. Where the evidence was conflicting as to whether defendant's street car had a headlight at the time of the accident, the court properly refused to instruct the jury to find in its favor if plaintiff's intestate was driving toward its track in a wagon which had no light, and defendant's motorman could not, by the exercise of ordinary care, have discovered the horse and wagon in time to avoid the collision after they came within range of the car.

10. Where, in an action against a street railway for the death of a driver at a crossing, there was no contention that defendant was liable notwithstanding the negligence of the deceased, the court properly refused to instruct that defendant was entitled to a verdict if the car was running at such a rate of speed that when the danger to the deceased could have been discovered the motorman could not stop the car in time to avert the accident, even though it was running at the highest rate of speed mentioned by any witness.

11. Whether a 16 year old boy, killed at a street car crossing, should have stopped to look and listen for a car before driving onto the track at a crossing on a dark and foggy night, held to be a question for the jury; the evidence being conflicting as to whether the car had a headlight.

12. A requested instruction in an action against a street railway for the negligent death of a driver at a crossing, that the deceased was negligent if he drove onto the track without looking and listening for a car, and could have seen or heard the car, had he done so, was not covered by an instruction that he was negligent if he failed to use ordinary care in driving across the track or looking out for approaching cars, and was improperly refused.

Appeal from Circuit Court, St. Louis County; John W. Booth, Judge.

Action by Thomas J. Campbell and wife against the St. Louis & Suburban Railway Company. Judgment for plaintiffs, and defendant appeals. Reversed.

McKeighan & Watts and Robt. A. Holland, Jr., for appellant. Clinton Rowell, Jos. H. Zumbalen, and S. P. Spencer, for respondents.

VALLIANT, J.

This is a suit for damages, under section 2864, Rev. St. 1899, for the death of plaintiffs' minor son, which they allege was caused by the negligence of the servants of the defendant in running a car on its railway. Defendant operates a street railway in St. Louis. The accident occurred at the point where defendant's tracks cross Whittier street. At that point defendant's tracks run east and west, and Whittier street north and south. Plaintiffs' son, who was 16 years old, was driving a grocery delivery wagon, going south on Whittier street, shortly after 6 o'clock in the evening, November 3, 1899, when, as he was crossing defendant's south track, the wagon was struck by a car with such violence that he was thrown out and instantly killed. The petition states that at that time there was an ordinance of the city which required the servants of defendant in charge of the car to keep a vigilant watch for vehicles and pedestrians either on the track or moving towards it, and, on the first appearance of danger to such vehicles or pedestrians, to stop the car in the shortest time and space possible, and that such cars after sunset should be provided with signal lights, and no car be run at a greater speed than eight miles an hour. It then states that the servants of defendant so negligently managed the car on this occasion as to cause it to strike the wagon, and throw the plaintiffs' son therefrom and kill him. Then the petition specifies four acts, as of negligence, which it alleges defendant committed, to wit, that there was no headlight; that the car was running 20 miles an hour; that the men in charge did not keep a vigilant watch, and failed to stop the car in the shortest time and space possible on the first appearance of danger to the vehicle; and that they failed to ring a bell on approaching the crossing. The answer was a general denial, and a plea that the plaintiffs' son was negligent, in that he drove on defendant's track without looking or listening for an approaching car, and thereby contributed to the accident. Reply, general denial.

The testimony for plaintiffs tended to prove as follows: Defendant's tracks are laid in an alley that runs east and west between West Bell street, on the north, and Morgan street, on the south. It is an unusually wide alley, being about 60 feet in width; the defendant owning a right of way 20 feet wide through the center. There are two tracks; the north track being used for the westbound cars, and the south track for the cars east bound. Whittier street runs north and south, intersecting the above-named streets, alley, and railroad tracks at right angles. This is in a residence district in the western portion of the city. The next street west of Whittier, and parallel to it, is Pendleton; the next, Newstead; and the next, Taylor avenue. The railroad tracks are on a straight line and level from Whittier street to Taylor avenue and beyond. There is a roadway in the alley on the north side of the tracks, 20 feet wide, and one on the south side 23 feet wide. In the angle made by the west line of Whittier street and the north line of the alley is a two-story brick stable. There were telegraph poles along the line of the railroad, one of which was just west of Whittier street. There was an arc light at the intersection of Whittier and West Bell streets, but no light at the crossing of the tracks. The night was dark and foggy. Whittier street was paved with vitrified brick, which pavement extended down to the railroad tracks. A wagon passing over the pavement made considerable noise. The vehicle in which plaintiffs' son was driving was an ordinary grocery delivery wagon, covered at top and sides, except that on each side, by the driver's seat, it was open for a space of 18 inches, so that the driver could see to the right and the left as well as to the front. On this occasion he came from the north, driving south on Whittier street, and, without stopping or slacking his pace, crossed the north track; and just as he got on the south track the wagon was struck by an east-bound car, and he was thrown out and instantly killed. It was not a regular passenger car, but a construction or repair car. It carried no headlight, but there were lights inside, and an incandescent bulb in the hood at the front of the car, with a reflection throwing the light upward, designed to enable the operator to see the wire overhead. The plaintiffs' witnesses variously estimated the speed of the car at 12, 15, and 20 miles an hour. It did not slacken its speed until it struck the wagon, and it stopped about 120 feet east of Whittier street. Four of plaintiffs' witnesses heard the car when it was halfway between Pendleton and Whittier streets, and recognized by the sound that it was a car approaching rapidly. Only one...