Chappell v. United Railways Company of St. Louis

• Citation: 156 S.W. 819,174 Mo.App. 126
• Court: Court of Appeal of Missouri (US)
• Decision Date: 06 May 1913
• Parties: ALBERT R. CHAPPELL, Appellant, v. UNITED RAILWAYS COMPANY of St. Louis, Respondent

156 S.W. 819

174 Mo.App. 126

ALBERT R. CHAPPELL, Appellant, v. UNITED RAILWAYS COMPANY of St. Louis, Respondent

Court of Appeals of Missouri, St. Louis

May 6, 1913

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

Judgment affirmed.

Robert L. McLaran for appellant.

(1) Under the common law as well as under the city ordinances, it was the duty of the motorman to keep a vigilant watch for persons and vehicles, either on or moving towards the track. Sepetowski v. Transit Co., 102 Mo.App. 110; Riska v. Railroad, 180 Mo. 168; Sludder v Transit Co., 189 Mo. 107; Deschmer v. Railroad, 200 Mo. 310. (2) The degree of care required depends upon the attendant circumstances and these may require the motorman not only to look ahead but also to have his car under control. In fact, to keep a vigilant watch means not only to look ahead in order to discover danger, but it means also that the motorman should be prepared to avert the danger especially in those places where he has every reason to expect it. Frick v. Railroad, 75 Mo. 595; Hoverka v. Transit Co., 191 Mo. 441; Deitring v. Transit Co., 109 Mo.App. 524; Funck v. Street Railway Co., 133 Mo.App. 419; Qube v. Transit Co., 103 Mo.App. 582. (3) A greater degree of care is required at street crossings than when running longitudinally in a street or between streets of a city. Frick v. Railroad, 75 Mo. 595. (4) No particular rate of speed is lawful, regardless of conditions. Holden v. Railroad, 108 Mo.App. 665; Beier v. Transit Co., 197 Mo. 215. (5) It is not necessary to prove by direct evidence that the motorman was not keeping a vigilant watch. This may be inferred from the circumstances. Batsch v. United Railways Co., 143 Mo.App. 58; Riska v. Railroad, 180 Mo. 168; Moore v. Transit Co., 194 Mo. 1. (6) Contributory negligence is an affirmative defense, and the burden of proving it rests upon the defendant. Weller v. Railroad, 164 Mo. 199; Latson v. Transit Co., 192 Mo. 451; Schmidt v. Railroad, 149 Mo. 269; Schroeder v. Transit Co., 111 Mo.App. 67; Hovarka v. Transit Co., 191 Mo.App. 441; Eckhard v. Transit Co., 190 Mo. 593. (7) In the absence of direct evidence or rebutting circumstances, one in attempting to cross a railroad track will be presumed to have been in the exercise of due care. Weller v. Railroad, 164 Mo. 198; Crumpley v. Railroad, 111 Mo. 157. (8) The doctrine of contributory negligence is qualified and limited by the "humanitarian doctrine." Latson v. Transit Co., 192 Mo. 451; Beier v. Transit Co., 197 Mo. 215. (9) The vigilant watch ordinance is simply a declaration of the "last chance or humanitarian doctrine." Gebhardt v. Transit Co., 97 Mo.App. 373. (10) No expert testimony was necessary to show that if the car had been under proper control and proceeding at a lawful rate of speed it could have been stopped in time to have avoided the accident. Latson v. Transit Co., 192 Mo. 449; Beier v. Transit Co., 197 Mo. 215. (11) If the failure to avoid the collision was due to the excessive and unlawful rate of speed at which the car was traveling, the defendant is still liable, although the car was stopped in the shortest time and space possible after the danger was discovered. Williams v. Railroad, 149 Mo.App. 489; Murrell v. Railroad, 105 Mo.App. 88; Rapp v. Transit Co., 190 Mo. 144; Eswin v. Railroad, 96 Mo. 290.

Morton Jourdan and Paul U. Farley for respondent; Boyle & Priest and T. E. Francis of counsel.

(1) Plaintiff was not entitled to have his case submitted to the jury under the vigilant watch assignment or "last chance doctrine," for the reason that he failed to show that, at the speed at which the car was running, it could have been stopped after the motorman saw, or could have seen, the automobile in a position of danger. Zurfluh v. Railroad, 46 Mo.App. 636; Koegel v. Railroad, 181 Mo. 379; Theobald v. Transit Co., 191 Mo. 395; Dey v. Railroad, 140 Mo.App. 461; Paul v. Railroad, 152 Mo.App. 577; Roenfeldt v. Railroad, 180 Mo. 544; Guyer v. Railroad, 174 Mo. 344; Marcowitz v. Railroad, 186 Mo. 350; McGee v. Railroad, 214 Mo. 530; Hawkins v. Railroad, 135 Mo.App. 524. (2) The negligence of plaintiff's driver was a question for the jury under his own testimony, and defendant therefore had the right to have it submitted.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action to recover the value of an automobile belonging to appellant, which was struck by two of respondent's street cars at a public street crossing in the city of St. Louis and demolished. The cause was tried before the court and a jury, resulting in a verdict for defendant, and plaintiff appeals.

It appears that on January 5, 1908, at about 6:30 p. m., a young man was riding in and driving plaintiff's automobile and was proceeding in a southerly direction along Clarendon avenue, a public street in the city of St. Louis, approaching the intersection of said street with the street railway tracks of defendant. Through this portion of the city this line of defendant's street railway is operated over a private right of way, except where the tracks intersect the streets. In approaching and crossing Clarendon avenue from the east, the tracks, instead of continuing west, curve toward the north. In crossing this street they extend in a general direction from southeast to northwest, and after crossing it continue to curve toward the north. There are two tracks of defendant at this crossing. Its westbound cars run on the northern track, and its eastbound cars on the southern track. In going south on Clarendon avenue, and while crossing the first or northern track, plaintiff's automobile was struck by a westbound car, and pushed along the tracks for some twenty feet, when it was also struck by an eastbound car on the other track, and crushed between the two cars and demolished.

Plaintiff pleads what is known as the "vigilant watch ordinance" which provides that those operating the car shall keep a vigilant watch for all vehicles and persons on foot, either on the track or moving toward it, and on the first appearance of danger to such vehicles or persons, the car shall be stopped in the shortest time and space possible; which ordinance also provides that all street cars after sunset shall be provided with signal and headlights, and that no car shall be drawn or propelled at a speed greater than fifteen miles per hour in that portion of the city in which defendant's car was being operated at the time. And plaintiff charges that the defendant's employees and agents in charge and control of its car negligently and unlawfully ran and operated the car, as it approached Clarendon avenue, "at a very high, negligent and unlawful rate of speed, to-wit, at the rate of about twenty-five miles per hour." It is also averred in the petition that it was dark at the time, and that defendant, its agents and employees, negligently failed to have any headlight or other signal light lighted and burning on the car, negligently failed to ring any bell or sound any gong or otherwise give warning of the approach of the car as it neared Clarendon avenue, negligently failed to keep a vigilant watch for vehicles or persons on foot who might be on the track or moving towards it, and negligently failed to stop or check the speed of the car, in the shortest time and space possible, when they saw the dangerous situation of plaintiff's said automobile and the occupants thereof.

The answer is a general denial, coupled with the averment that whatever damages, if any, plaintiff sustained, were caused by the negligence and carelessness of plaintiff's driver in charge of plaintiff's automobile. The reply denies the allegations of the negligence of plaintiff's driver contained in the answer.

Inasmuch as the assignments of error pertain only to the giving and refusing of instructions, it would serve no useful purpose to review the evidence further than to refer to such portions thereof as are material to the questions before us, and which we shall do in considering the instructions in the case.

At the close of plaintiff's case defendant, after offering a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court, stood upon its demurrer and offered no evidence.

I. The first error assigned is the refusal of the court to give, as offered, an instruction at the request of plaintiff, to the effect that if the jury believed from the evidence that the agents and servants of defendant in charge and control of its car failed to use and exercise ordinary care in the operation thereof, under the existing circumstances, "either by operating said car at an excessive rate of speed having regard to the crossing which it was then approaching, or by failure to sound a gong or ring a bell or give some other warning to the driver of said automobile as it approached Clarendon avenue, or by failing to keep a vigilant watch for all vehicles or persons on foot either on the track or moving towards it or by failing on the first appearance of danger to the plaintiff's automobile to stop its car or cars in the shortest time and space possible," etc., then, finding that the person in charge of plaintiff's automobile exercised ordinary care in the premises, the verdict should be for plaintiff.

The court refused to give this instruction as offered, but modified it by striking out the words which we have italicized above, and gave it as modified. Appellant insists that this was error. His contention in this regard is, that there were facts and circumstances in the case from which the jury might have properly inferred that the motorman was not keeping a vigilant watch, or was negligent with respect to stopping the car, and that plaintiff was therefore entitled...