Criss v. United Railways Company of St. Louis
| Decision Date | 05 May 1914 |
| Citation | 166 S.W. 834,183 Mo.App. 392 |
| Parties | JOSEPH CRISS, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
April 8, 1914, Argued and Submitted
Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.
AFFIRMED.
Judgment affirmed.
Boyle & Priest and R. E. Blodgett for appellant.
The demurrer to the evidence should have been sustained. The failure to sound the gong cannot be considered. Green v Railroad, 192 Mo. 143. The case could not be submitted on the violation of the vigilant watch ordinance or humanitarian doctrine. McGee v. Railroad, 214 Mo 530; Hawkins v. Railroad, 135 Mo.App. 534; Guyer v. Railroad, 174 Mo. 351; Graefe v. Transit Co., 224 Mo. 232; Behen v. Transit Co., 186 Mo. 430; Mockowik v. Railroad, 196 Mo. 567. The violation of the speed ordinance will not support a recovery on account of the contributory negligence of the plaintiff as a matter of law. McCreery v. Railroad, 221 Mo. 18; Paul v. Railroad, 152 Mo.App. 577; Sanguinette v. Railroad, 196 Mo. 466; Boring v. Railroad, 194 Mo. 541; Reno v. Railroad, 180 Mo. 469; Mockowik v. Railroad, 196 Mo. 550.
Earl M. Pirkey for respondent.
(1) Where plaintiff sees a street car coming and tries to cross the track before the car reaches him, he is not guilty of negligence as a matter of law--if the car is running at an unlawful speed and reaches him because of this speed and plaintiff did not know the car was running at an unlawful speed when he entered the danger zone; if the motorman could with safety to the passengers have by the exercise of ordinary care stopped the car or checked its speed sufficiently as to have prevented the collision. Strauchon v. Metropolitan Street Railway Co., 232 Mo. 600; Hauck-Hoerr Bakery Co. v. United Rys. Co., 127 Mo.App. 190; Borders v. Street Ry. Co., 168 Mo.App. 172. (2) Testimony that the perilous position of the wagon and team could be seen from the car when it was one hundred and fifty feet away and that the car could have been stopped with safety to the passengers in a shorter distance, raised a question of fact for the jury, regardless of whether plaintiff was negligent or not. Hauck-Hoerr Bakery Co. v. United Rys. Co., 127 Mo.App. 195; McQuade v. St. L. and Suburban R. Co., 200 Mo. 158; Waddell v. Met. Street Ry. Co., 213 Mo. 16. (3) The law presumes, in the absence of proof to the contrary, that one crossing the track acts upon the assumption that an approaching car is not being run in excess of the maximum speed permitted by the ordinance, and in such case the court has no right to assume, as a matter of law, that his conduct is negligent. Hutchinson v. Railroad, 161 Mo. 247. (4) A party is not so bound by the testimony of one of his witnesses that he may not show the facts to be different by other witnesses. Phelan v. Paving Co., 227 Mo. 711. (5) The court takes judicial notice that a street car on a level track running at not more than seven miles an hour can be stopped by the motorman by the exercise of ordinary care within forty feet after he first sees a vehicle in danger. Latson v. St. Louis Transit Co., 192 Mo. 460.
Comparing the evidence in the case as set out in the abstract with the statement as prepared by counsel for respondent, we find the latter statement so concise that we follow it with some additional statements taken from that of counsel for appellant, and a few of our own, with the premise that the accident occurred in the city of St. Louis and within what is designated as the central district, the speed in which is not to exceed ten miles per hour, and that the streets referred to are streets of that city.
Eleventh street runs north and south. Chouteau avenue runs east and west. The next street south of Chouteau is Hickory street. Between Hickory street and Chouteau avenue there is an alley running east and west. About ninety-four feet south of the alley and on the east side of Eleventh street is a large building occupied at the time by the American Manufacturing Company, which, until passed, obstructs the view of Eleventh to the south. The plaintiff was a teamster in the employ of the Standard Transfer Company, which at the time was doing the teaming for the American Manufacturing Company. The defendant operates a double track on Eleventh street between the two streets mentioned, over which tracks it runs two lines of cars, known as the Cherokee and Tower Grove cars, these cars running north on the east track and south on the west track. Eleventh street, at the alley, is fifty feet wide from building line to building line. The alley is twenty-four feet, ten inches wide. From the building line on the east side of the street at the alley to the east rail of the northbound track the distance is seventeen feet, four inches. The north line of the alley is five hundred and sixty-seven feet north of the north line of Hickory street, its south line five hundred and forty-three feet, two inches north of the north line of Hickory street. The north line of the alley is one hundred and sixty-six feet south of Chouteau avenue. The cars on each line run about three or four minutes apart each way. From Hickory street to Chouteau avenue is slightly down grade.
On the 24th of October, 1911, at about half past one o'clock in the afternoon, the day being clear, plaintiff was driving his wagon from the premises of the American Manufacturing Company out of the alley north of the building of that company and along that alley, intending to go to a scale west of Eleventh street. The wagon was drawn by two horses and was loaded with what are called "patches." With its load the wagon weighed between 12,000 and 13,000 pounds. The body of the wagon was about twelve feet long, the tongue some ten or twelve feet additional. Plaintiff was well acquainted with the location, having driven out of this alley from time to time for some six or seven years. According to his own testimony, on the day of the accident as he drove along the alley, and before he passed the building line, he stopped his team and listened but heard no car. He then drove further so that he could see south past the building and toward Hickory street, and there stopped his team, the heads of his horses then being about three feet east of the east or northbound track. That put him, seated in his wagon, about fifteen feet from the east track, and two feet clear of the building line. He looked south and saw a northbound car at Hickory street, but he could not tell whether the car was moving or had stopped. So that when he saw the car it was about five hundred and forty-two feet and two inches south of him, south of the south line of the alley out of which he had driven. He then started to cross the tracks, driving at the rate of about two miles an hour. When his horses had crossed the west rail of the east tracks he again looked toward the south and saw the car about forty feet from him and coming toward him at a rate of speed which plaintiff estimated at from twenty to twenty-five miles an hour. That is, while plaintiff had traveled about eight feet the car had covered about five hundred feet. Plaintiff immediately started to whip up his horses, and when the front wheels of his wagon were about at the west rail of the northbound or east track, the street car struck the wagon about at the front wheel, hurled it and the horses bodily off the track and around to the northeast corner of the alley, where the wagon struck against an iron lamp post, which it broke; the horses were thrown down and plaintiff was thrown to the street and sustained injuries on account of which he brought this suit. The car ran about ten feet further before it stopped. The noise of the collision was so loud that it was heard by persons at some distance.
All of the witnesses testifying for plaintiff, as well as plaintiff himself, testified that the car had neither sounded any gong nor slackened up any immediately before the collision. Other witnesses than plaintiff, testifying for him, stated that the street car at the time of the collision was running between twenty and twenty-five miles an hour. There was testimony to the effect that when the team was going off of the west rail of the east or northbound track, the street car was then about 150 or 200 feet south of there and coming on at a rapid rate, at from twenty to twenty-five miles an hour, as they testified. All of the witnesses testifying for plaintiff, and there were a number of them, testified that the street car failed to slacken its rate of speed at any time before the collision, but was then running at a rate of from twenty to twenty-five miles an hour. Counsel for appellant in their statement of the case admit that there was evidence in the case tending to show that the car was 150 feet from the wagon when the front wheels of the latter reached the east rail. Testimony of witnesses, introduced as experts, was to the effect that a car running at a rate of speed of twenty miles an hour could be stopped in 120 feet; at twenty-five miles an hour in 125 feet, but that with the type of car in question a very steep grade was necessary to obtain a speed of twenty miles an hour. One of these witnesses, a former motorman in the employ of defendant, testified that he could stop a car going at the rate of twenty miles an hour in eighty-five feet, and when going at thirty miles an hour in 125 feet.
On the part of defendant there was evidence tending to show that while the car was approaching the alley at the rate of eight or ten miles an hour, plaintiff drove from the alley immediately in front of the car and so close thereto that the car could not be stopped in time to avert a collision....
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