Deane v. St. Louis Transit Co.

• Decision Date: 21 December 1905
• Citation: 192 Mo. 575,91 S.W. 505
• Parties: DEANE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 505

192 Mo. 575

DEANE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. STREET RAILROADS — INJURIES TO PEDESTRIANS — ACTIONS — SUFFICIENCY OF EVIDENCE.

In an action against a street railway for the death of a person crossing its track, caused by a collision with a car, evidence held to show that the car which struck deceased was not exceeding the speed of 15 miles an hour, which it was authorized by ordinance to maintain.

2. SAME—CONTRIBUTORY NEGLIGENCE.

A passenger on a west-bound street car, who alighted from his car, passed in the rear thereof, and started to cross the east-bound track of the street railway, when he was struck by an east-bound car, was guilty of contributory negligence where he failed to look for the car which struck him and proceeded to cross the track, absorbed in a newspaper, without any attention to his surroundings.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Anna M. Dean against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Morton Jourdan, Geo. W. Easley, and Boyle, Priest & Lehmann, for appellant. Frank K. Ryan and E. P. Johnson, for respondent.

MARSHALL, J.

This is an action under the statute to recover $5,000 for the death of the plaintiff's husband, on the 20th of May, 1901, occasioned, it is alleged, by the negligent running of the defendant's car, at the intersection of Finney avenue and Whittier street, in the city of St. Louis. There was a verdict and judgment for the plaintiff for $5,000 and the defendant appealed.

The issues: The petition is very voluminous, but the gist of the negligence charged is that the agents of the defendant failed to stop the car in time to avoid the injury to the deceased after the danger was known to them, or by the exercise of ordinary care could have been known to them; that the car was running at a dangerous rate of speed, and the operatives were not keeping a vigilant watch for persons approaching or moving on the tracks; that the deceased was a passenger on one of defendant's west-bound cars, and left the car at Whittier street, and was struck by an east-bound car when attempting to cross the south track on Finney avenue; and that the operatives of the east-bound car negligently failed to sound the gong, or turn off the current of electricity and slow up the car, when passing the west-bound car. The petition further alleges that a prior action for the same purpose was instituted on the 17th of July, 1901, and that the plaintiff suffered a nonsuit therein on the 15th of July, 1902, which allegation is intended to bring this action within the provisions of the statute in such cases. The answer is a general denial, coupled with a plea of contributory negligence of the deceased, in that he stepped in front of defendant's car, in such close proximity to it as to make it impossible to prevent the accident, and without looking or listening for the approach of the car. The reply is a general denial.

The case made is this: The defendant has a double-track street railway on Finney avenue. The tracks are four or five feet apart. Whittier street does not extend northwardly beyond Finney avenue. The accident occurred a little after six o'clock in the evening. The deceased was a passenger on a west-bound car. When the car reached a point near Whittier street, there were three cars going west on the north track and five cars going east on the south track. The deceased was riding on the second of the three cars going west. He was struck by the first of the five cars going east. The car on which the deceased was a passenger stopped a few feet west of the west line of Whittier street. He alighted from the car, passed around the rear, across the north track, and walked diagonally in a southeasterly direction across Whittier street. He did not stop or look or listen for a car approaching on the south track, but proceeded southeastwardly, and was reading a paper as he walked. He had only gone a few feet east of the west line of Whittier street, and had about reached the north rail of the south track, when he was struck by a car coming eastwardly and injured so that he died as the result thereof. The track west of Whittier is straight for three blocks west-wardly to Taylor avenue, and a person standing in the four or five foot space between the two tracks could see a car for that distance west-wardly. The grade is a slight downgrade from Taylor avenue to Whittier street. After the accident, the car that struck the deceased stopped with its rear platform at the east side of Whittier street.

With respect to the speed of the car that struck the deceased, the plaintiff's case rests upon the testimony of three witnesses, to wit, Thomas Furlong, Louis Robbin, and Delina Roberts. Furlong was a passenger with the deceased on the west-bound car, and was seated on the south side thereof, about the middle of the car, reading a paper. He testified that he did not know how fast the east-bound car was running, but was of opinion that it was running fast. Robbin was a passenger on the west-bound car, immediately behind the car on which the deceased was riding. When the car on which Robbin was riding reached the east side of Whittier street, it stopped to permit the car on which the deceased was riding to discharge passengers at the west side of Whittier street, and Robbin arose and looked out of the front door, and saw the deceased crossing the north track, and at the same time he saw an east-bound car coming on the south track. He testified that the deceased was walking in a southeasterly direction, and that there was nothing to prevent his seeing the east-bound car on the south track, if he had looked; that at the time he saw the deceased so walking the east-bound car was 25 or 30 feet west of the west crossing. He did not testify as to the speed of the east-bound car. Mrs. Roberts was an eyewitness to the accident. She was standing at the southeast corner of Whittier street and Finney avenue. She testified that the deceased stepped off of the car about 10 feet west of the west crossing of Whittier street and walked diagonally southeastwardly; that the east-bound car was running very fast, and that, just as the deceased reached the north rail of the south track, the east-bound car was 20 or 25 feet from him; that the deceased did not notice the car until just before it struck him, which it did at a point 3 or 4 feet east of the west crossing, and about 15 feet east of the point at which the deceased had alighted from the car; that she came of a family of railroad conductors, and had a brother who was a passenger conductor at the time, and that she had frequently observed the speed of cars, and in her opinion the east-bound car was travelling at not less than 25 miles an hour. She further testified that the deceased neither looked to the right nor left nor back of him, but seemed to be looking straight ahead across the track in a little southeasterly direction; that the deceased never looked to the west until he jumped back, when the car was right upon him; that there was no obstruction on the track at any time to prevent the deceased from seeing the east-bound car, all the way up to Taylor avenue, a distance of three blocks.

The defendant called six witnesses, who testified with respect to the speed of the car. W. C. Scarborough, a passenger on the west-bound car from which the deceased alighted, was standing on the back platform, looking eastwardly, and was within 8 feet from where the deceased crossed the west-bound track. He testified that the deceased had gotten a step or two into the middle of the east-bound track, when he looked up and saw the east-bound car about 8 feet from him; that he stepped or jumped back, but the car struck him and injured...