Cihla v. United Rys. Co. of St. Louis.

• Decision Date: 04 May 1920
• Docket Number: No. 15812.,15812.
• Citation: 221 S.W. 427
• Parties: CIHLA v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

221 S.W. 427

CIHLA v. UNITED RYS. CO. OF ST. LOUIS.

No. 15812.

St. Louis Court of Appeals. Missouri.

May 4, 1920.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Anna Cihla against the United Railways Company of St. Louis. From Judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

Bartley & Douglass, of St. Louis, for respondent.

NIPPER, C.

This suit was brought by a widow, under the wrongful death statute, for damages. Plaintiff recovered damages for $6,000 in the court below. Plaintiff's husband was killed about 8:30 o'clock on the evening of September 23, 1916, by being struck by one of defendant's south-bound cars, at the intersection of Broadway and West Russell avenue, in the city of St. Louis.

The defendant maintains two street car tracks on Broadway, running north and south. The east track on said street is used by cars going north, and the west track is used by cars going south. It was a southbound car which struck deceased and caused his death. Russell avenue does not cross Broadway at right angles, but where Russell avenue intersects Broadway on the west it is about 50 feet north of where it intersects Broadway on the east. At the place of this intersection Broadway is a straight street, and Is also straight for several blocks north, and the street cars going south and crossing Russell avenue move slightly down grade. The deceased lived five or six blocks west of Broadway on West Russell avenue, and on the evening in question had gone from his home to a tobacco store located at the northeast corner of Broadway and East Russell avenue. Immediately north of the tobacco store and on the same side of the street was a barber shop. After purchasing some tobacco at this tobacco store, the deceased walked in front of the barber shop, and then proceeded almost directly westward to cross the street near the south corner of Broadway and West Russell avenue. While the deceased was crossing the southbound car track, he was struck by a southbound street car, and died in a very short time thereafter.

Plaintiff testified that she was married to the deceased in 1896; that she had four minor children, the youngest of which was 10 years old; that the deceased was 51 years old at the time of his death, and was in perfect health; and that he supported her and the family.

Grover Nowotny, one of plaintiff's witnesses, who lived only a few blocks away from the place of the accident, testified that he was in the building at the southwest corner of Broadway and West Russell avenue, eating a sandwich, and was looking out through the door of the building when he saw the car which struck the deceased, at Broadway opposite West Russell avenue, and that it was traveling between 18 and 20 miles an hour. This was immediately before deceased was struck. This witness did not see the deceased.

Two other witnesses, a Mrs. Kaufman and a Mrs. Frynor, were standing in front of the building on the west side of Broadway, about two doors south of East Russell avenue. Mrs. Frynor, in giving her version of this affair, stated, when asked if she saw the car strike a man:

"Yes; I seen while 2 looked over that way the man, the right end of the car on the west side struck the man, and he fell, and he rolled three times, and the fourth time he was under the car."

A to the speed of the car, she said it was "going fast."

Mrs. Kaufman was standing near the same point where Mrs. Frynor was at the time of the accident. She said she saw deceased just about the time he was struck.

There was also testimony as to the time in which the car could have been stopped. The principal witness as to the accident was plaintiff's witness, Mrs. Smith, who was standing on her front porch on the north side of West Russell avenue, one or two doors west of the corner. She stated she saw the deceased leave the sidewalk in front of the barber shop on the east side of. Broadway, and proceed in a westward direction across Broadway toward the southwest corner of Broadway and West Russell avenue; that this front porch on which she was standing was "a little higher than a man's head"; that she was looking at deceased at the time he was crossing Broadway, as she thought he was an uncle of hers, and for that reason was noticing him; that she saw him before he crossed the street and while he was walking across the same; that he never stopped from the time he started across the street until he was struck by the car; that at the time he was struck he was near the middle of the south-bound track walking westward. Immediately prior to this time there was a car going north on the east track, and all the gong that she heard sounded was on the north-bound car. She also stated that this north-bound car had gone before the south-bound car arrived. She said she never saw the deceased look around; that he could have seen the car if he had; but that she did not see it until just as it struck deceased. In describing how deceased walked in crossing the street, she stated: "He walked just like a man coming from work."

The petition alleges negligence in violating: (a) A speed ordinance; (b) vigilant watch ordinance; (c) failure to ring a warning gong or bell; (d) common-law negligence in the operation of its car at a high, dangerous, and negligent rate of speed.

The answer was a general denial and a plea of contributory negligence.

At the close of plaintiff's evidence, defendant offered an instruction in the nature of a demurrer, which the court overruled. Defendant introduced no testimony.

The case was submitted to the jury upon plaintiff's evidence, and, after verdict and judgment as aforesaid, defendant appealed, and urges a number of assignments of error before this court as grounds for reversal. We shall consider such of them as we deem necessary to a proper determination of this case. First, as to the demurrer: Appellant very strenuously urges before this court that deceased was guilty of contributory negligence as a matter of law, and that his negligence directly contributed to the injury which caused his death, and this question should not have been submitted to the jury.

One of the latest cases relied upon by appellant to sustain his contention is state ex rel. Peters v. Reynolds et al. (Sup.) 214 S. W. 121. In the case just referred to the deceased was crossing a railroad track in front of an approaching train. In the case at bar the deceased was crossing or attempting to cross a street railway at a regular street crossing, and at a point which we may infer was constantly used by the public. And where, as here, there is no positive and direct testimony as to whether deceased looked or did not look as he approached the west or south-bound car track, he will be presumed to have exercised ordinary care and to have seen that which he could have seen, namely, an approaching street car upon a track which was straight for several blocks to the north. Goff v. St. Louis Transit Co., 199 Mo. 694, 98 S. W. 49, 9 L. R. A. (N. S.) 244; Eckhard v. St....