Cavey v. St. Joseph Ry., Light, Heat & Power Co.

• Decision Date: 20 December 1932
• Docket Number: No. 30713.,30713.
• Court: Missouri Supreme Court
• Parties: CAVEY v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

55 S.W.2d 438

CAVEY v. ST. JOSEPH RY., LIGHT, HEAT & POWER CO.

No. 30713.

Supreme Court of Missouri, Division No. 1.

December 20, 1932.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

Action by V. A. Cavey, executor of the estate of Joseph Pickett, deceased, against the St. Joseph Railway, Light, Heat & Power Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Randolph & Randolph, of St. Joseph, for appellant.

Mayer, Conkling & Sprague, of St. Joseph, for respondent.

GANTT, J.

Action to recover $10,000 for the alleged wrongful death of Joseph Pickett, seventy-five years of age and almost deaf. He collided with a street car of defendant in St. Joseph and suffered injuries from which he died. The "vigilant watch" ordinance of said city is set forth in the petition, but the cause of action pleaded and relied upon is violation of the humanitarian rule. The answer is a general denial with a plea of contributory negligence.

At the close of the evidence on the part of plaintiff, the court indicated a directed verdict for defendant. Thereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. The motion to set aside the nonsuit was overruled, and plaintiff appealed. The question presented is whether or not there was substantial evidence of a violation of the humanitarian rule in that defendant negligently failed to stop the car when plaintiff was in peril.

The only evidence on the question was the testimony of Henry McDowell and Leslie Bennet. They testified in substance as follows:

Lake avenue runs north and south and is intersected by Texas and Arizona streets. The collision occurred on Lake avenue between 6 and 7 p. m. on February 23, 1929, and about the middle of the block between said streets. It was getting dark, had been raining, and the street and rails were wet. The street car was lighted by headlights and the usual lights inside the car. A few minutes before the collision McDowell drove a truck, with lighted headlights, onto Lake avenue, about three blocks north of Texas avenue, and proceeded south on the west side of Lake avenue. He was accompanied by Leslie Bennet, who was seated on the right side of the cab. He proceeded south in front of a street car, until they reached about the middle of the block between Texas and Arizona streets. He then drove the truck, twelve to fifteen feet in length, toward the west and stopped about six inches from the curb. At the time, deceased was standing on the sidewalk on the west side of Lake avenue and "half way" between the truck and an automobile parked six or eight feet in front of the truck. As Mc-Dowell started to alight from the truck, he heard the approaching street car near the rear of the truck and heard the ringing of the car bell. At this time deceased...