Dickens v. Wells

• Decision Date: 05 December 1922
• Docket Number: No. 17262.,17262.
• Citation: 245 S.W. 563
• Parties: DICKENS v. WELLS
• Court: Missouri Court of Appeals

245 S.W. 563

DICKENS v. WELLS

No. 17262.

St. Louis Court of Appeals. Missouri.

December 5, 1922.

Appeal from St. Louis Circuit Court; Karl Kimmel, Judge.

"Not to be officially published."

Action by George Wesley Dickens by Lillie V. Dickens, his next friend, against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant.

W. J. Blesse and William Kohn, both of St. Louis, for respondent.

DAUES, J.

The action is one for damages for personal injuries. The trial resulted in a verdict and judgment for plaintiff in the sum of $2,000. After unavailing motions for new trial and in arrest of judgment, defendant has appealed.

The petition counts on the following: (1) Violation of the vigilant watch ordinance; (2) operation of the car at a speed in excess of 15 miles per hour, in violation of the speed ordinance; (3) failure to sound a gong; and (4) last chance doctrine.

The answer is a general denial, coupled with a plea of contributory negligence and a violation of the right of way ordinance. Plaintiff filed a reply which is a general denial.

George Wesley Dickens, a lad 16 years of age, who brings this suit by next friend, was injured on July 11, 1919, in a collision between one of defendant's street cars and a team and wagon driven by plaintiff, at the intersection of an alley running between Bayard and Walton avenues and the defendant's Hodiamont right of way in the city of St. Louis.

We outline briefly the evidence involved in the questions presented to us on this appeal. Plaintiff testified that he was driving northwardly in the alley described above, which is brick-paved and about 25 or 30 feet wide. Plaintiff was then in the employ of a construction contractor and was driving a span of mules to a work wagon. He was on his way to begin work, between 3 and o'clock in the morning. On the southwest corner of the alley and the Hodiamont right of way there was a shed about 12 or 15 feet high and about 15 feet south of the tracks. The alley runs north and south, and the right of way runs east and west at this point. There was a fence about 5 or 6 feet high on the east side of the alley at this corner, extending up along the alley about 75 feet and about 100 feet on the side of the right of way, so that one driving a wagon north in the alley and approaching the tracks had a clear view to the east, but a somewhat obstructed view to the west, on account of the shed. Plaintiff was sitting on the driver's seat near the front of the wagon at a point about 10 or 12 feet to the rear of the front end of the tongue of the wagon. Plaintiff says that when the tongue of the wagon was a foot or two south of the first street car rail he brought his team to a stop and looked east, where he had a clear view, and saw no car coming from that direction; he then looked west as far as it was possible for him to see, where, he says, he could see about 6 feet of the east-bound or south track. He said he "listened carefully" for a car, but that he heard no bell or gong, nor any sound indicating the approach of a car, and that he thereupon proceeded to start the mules across the tracks. As soon as he cleared the shed he again looked west and saw an east-bound street car approaching at a distance of 40 to 50 feet west of him. After some expressions of uncertainty on the part of plaintiff, he testified finally that the car was then running about 20 miles an hour. At that time the mules were upon the south track, upon which the east-hound car was then traveling, and the mules were then in a gait of about 5 or 6 miles an hour. Discovering his predicament, plaintiff "hollered" at the team in an effort to make them go ahead. He was unable to cross or get off the track in time to avoid a collision, and the team and wagon were struck, the impact being at about the front wheel of the wagon. Plaintiff was thrown out of the wagon, and when he regained consciousness found himself hanging on the fence south of the track about 15 feet east of the alley, one leg and one hand being over the fence and his body being suspended.

Plaintiff's evidence tended to show that the injuries consisted of abrasions and injuries to the hand and head, disabling him for many weeks and resulting in severe pains in the head.

On cross-examination, plaintiff testified that he knew the location of the Hondiamont right of way at that point, and that he knew that east-bound street cars passed the point at the mouth of the alley, and that when he saw the car he was about to cross the first rail of the east-bound track; that is, that another turn of the wheel would have brought it to the rail. Plaintiff introduced in evidence two ordinances of the city of St. Louis, to wit, the vigilant watch ordinance, and the speed ordinance, limiting the speed of street cars to 15 miles an hour at that place.

There was expert testimony adduced by plaintiff to the effect that a car under circumstances detailed in the evidence and with the appliances available, traveling 20 miles an hour could have been stopped within 30 or 35 feet.

On behalf of the defendant, the motorman testified that he never saw the team until it came out from behind the shed in a fast trot; that he reversed the car, which was then about 10 or 15 feet from the alley and on a 3 or 4 per cent. down grade, and that the car was traveling about 10 miles an hour; that he reversed the car and applied the brakes, and that after striking the team he stopped the car in about 15 feet. He testified also that he sounded the gong on approaching the alley. On cross-examination, he testified that the shed at the alley was 10 or 11 feet high; that he could not see the wagon as it approached the tracks, and that he could have stopped the car in about 35 feet as it was then traveling and under the circumstances as existed there. The conductor and one or two other witnesses testified to about the same effect. Substantially this was all the evidence in the case.

The case was submitted to the jury on all the allegations of negligence contained in the petition.

Appellant's assignment of errors relates entirely to the giving and refusing of instructions. The first error assigned is addressed to the giving of plaintiff's instruction No. 1. Learned counsel for the receiver argue that the court erred in giving the jury this instruction, for the reason that—

"It covers the whole case and authorizes a verdict for plaintiff on a mere finding by the jury that the defendant's motorman `failed to stop the street car in the shortest time and space possible,' with due regard for the safety of said car and the passengers thereon, whereas, under the law, liability is cast against defendant in the circumstances therein hypothesized only when it appears and is found that the motorman, by the exercise of ordinary care to that end, with the appliances at hand for that purpose, could have stopped the car with safety," etc.

It is said that this instruction casts the burden on defendant beyond that which the law either recognizes or tolerates, and appellant relies upon the case of Vogt v. United Rys. Co. (Mo. App.) 226 S. W. 75. The instruction is lengthy and would serve no useful purpose to set same out, since appellant's objection is so pointed as to make the controversy in that regard very plain. It is true, in the Vogt Case cited, this court held that an instruction given under the vigilant watch ordinance, which permitted recovery if the defendant's motorman could have avoided colliding with the truck on which plaintiff was riding at a time after he saw, or by the exercise of ordinary...