Carl v. East St. Louis & S. Ry. Co.

Decision Date08 January 1924
Docket NumberNo. 17998.,17998.
Citation258 S.W. 72
PartiesCARL v. EAST ST. LOUIS & S. RY. CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge.

"Not to be officially published."

Action by Willis F. Carl against the East St. Louis & Suburban Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

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

Edward W. Foristel and O. J. Mudd, both of St. Louis, for respondent.

NIPPER, C.

This is an action for damages alleged to have been sustained by plaintiff on the 8th day of August, 1921. At the time plaintiff sustained his injuries he was riding in a truck on the right-hand side of the driver. While said truck was being operated over the streets of East St. Louis, Ill., and at the intersection of State and Twenty-Ninth streets in said city, the same was struck by one of defendant's east-bound street=cars and injured plaintiff and two other occupants of the automobile truck. Plaintiff recovered judgment, and defendant appeals.

The negligence counted upon in the petition is: (a) Failure to keep a vigilant watch; (b) excessive speed; (c) failure to give warning; (d) the humanitarian or last chance doctrine.

The petition also alleges that, as a direct result of plaintiff's injuries, he lost wages and earnings as a carpenter at the rate of $10 a day for a period of one month, and will in the future lose further earnings and wages as a result of his injuries; that he was obligated to spend $200 for medical and surgical attention, and $100 for medicines, nursing, and hospital bills, and will in the future be required to expend further sums; and that plaintiff's ability to engage in his occupation as a carpenter and earn a livelihood has been seriously impaired.

The answer contained a general denial, coupled with a plea of contributory negligence, In which it Is alleged that had plaintiff exercised ordinary care he would have seen the car approaching in dangerous proximity to said truck, and could have avoided being struck if he had exercised ordinary care to have jumped from said truck.

The reply was a general denial.

The testimony on the part of plaintiff tended to show that the defendant was operating a street car line which ran through East St. Louis to Belleville, Ill. State street runs east and west from East St. Louis to Belleville. Over this street, which Is 66 feet wide, defendant operates a double-track street railway; the south track being for the eastbound cars, and the north track for the westbound cars. State street for several blocks each way from Twenty-Ninth street, the place where the accident occurred, is a straight level street. On the date mentioned in the petition, the plaintiff was riding in the cab of an automobile truck which was driven by James Phillips. There were three persons in the truck, namely, Phillips, plaintiff, and Richard Avery. Avery and plaintiff were riding in the truck as guests of Phillips, who had stopped at plaintiff's house on the morning in question, and was driving plaintiff and Avery to where a building was being constructed near the northeast corner of State and Twenty-Ninth streets. The curtains of the cab were open, and to the right of the front seat there was an open doorway; there being no door attached. Phillips drove the automobile with the above-mentioned occupants several blocks east over State street, and was driving near the south curb line, and at the rate of about 10 or 12 miles per hour. When the automobile reached Twenty-Ninth street, running north and south, and got into the street, the driver, Phillips, reduced the speed to 4 or 5 miles an hour, held out his left hand, and turned to the north, proceeding northwardly on Twenty-Ninth street to cross the same. From the point where the driver began to make the turn, to the west-bound track, was a distance of 20 or 30 feet. Some two or three witnesses testified with respect to this distance, but it is not clear from their testimony that they all agree as to the exact distance, but it is within the distance above stated. At the time the operator of the automobile began to make the turn northwardly, there was an interurban street railway car approaching westwardly on the west-bound track. Plaintiff had been looking east as they approached this crossing, and as they started to turn ha noticed this street car, as did Phillips. At that time the street car was about 475 feet east, and also east of Thirtieth street, the next street crossing to the east. Thirtieth street was a usual and customary stopping place for these cars to take on passengers, and at that time plaintiff observed three women standing at the point where the cars usually stop to take on passengers. The distance between Twenty-Ninth and Thirtieth streets is about 400 feet. The automobile then proceeded at the rate of about 4 or 5 miles per hour northward, and over the space between the two tracks, during which time plaintiff `Looked to the west to see if any car was approaching from that direction. Having ascertained that there was none approaching, he looked to the east again. When the front of the automobile had reached the center of the west-bound track, Phillips looked east again, and saw the street car approaching at the rate of 50 or 30 miles an hour. Several witnesses for plaintiff fixed the speed at which the street car was approaching at about 50 miles per hour. At that time the street car was within about 125 feet of the automobile. It is not entirely clear from plaintiffs' evidence just where the automobile was when he looked east the second time after looking west. When asked the question how far the automobile traveled from the time he saw the car until the time he saw it the second time, he answered: "Oh, possibly 10 feet." Plaintiff said nothing to the operator of the automobile, nor did he make any effort to get out of the same before it was struck.

It appears that Thirtieth and State streets was a regular stopping place for these cars, and had been for more than 20 years; that there was a large sign attached to a post and located at that intersection, reading, "Cars stop." The street car did not stop, but proceeded on to Twenty-Ninth street, where it struck plaintiff. The street car at the time had all the seats occupied with passengers; and some four or five were standing up. It also appears that occasionally when a car was crowded with passengers it would not stop at one of these regular stopping places

F. E. Deichman, an ex-motorman, who had worked for the defendant company and operated cars over this line of railway for two years, testified that a car Like the one in question, loaded with passengers, and running at the rate of 50 miles per hour, could be stopped in 100 feet with reasonable safety to the operator of the car and the passengers. After defendant's counsel had completed his cross-examination, he moved to strike out the testimony of this witness on the ground that the cross-examination had revealed that such witness was incompetent as an export. This motion was overruled.

On behalf of defendant, the testimony all tended to show that the automobile was being driven eastward astride of the rail of the east-bound street car track. When the automobile got into Twenty-Ninth street, it suddenly turned to the north and upon the west-bound street car track, at which time it was struck. At the time the automobile started to make the turn, the street car was from 30 to 60 feet away. The motorman places the distance at 30 feet, while another witness for defendant places the distance at about a car's length, or 60 feet. The motorman testified that he applied the emergency brake, but had no time to reverse the car. The conductor testified that the street car, after the brakes were applied, traveled about 96 feet before it came to a stop. The motorman also testified that these street cars of the defendant, operated over this line,...

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