Eckhard v. St. Louis Transit Co.

Decision Date25 October 1905
Citation89 S.W. 602,190 Mo. 593
PartiesECKHARD v. ST. LOUIS TRANSIT CO.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Catherine Eckhard against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by plaintiff, the widow of George F. Eckhard, deceased, to recover from defendant $5,000 damages for the negligent killing of her husband, the said George F. Eckhard, at the intersection of South Broadway and Fillmore streets, in the city of St Louis, Mo., on the afternoon of December 15, 1901. The petition alleges the incorporation of defendant; its operation of a line of street railway along South Broadway; that South Broadway and Fillmore streets were open public streets in the city of St. Louis; that George F. Eckhard was the lawful husband of plaintiff; that on the 15th day of December, 1901, and within six months of the filing of the petition, George F. Eckhard, the husband of plaintiff, was crossing South Broadway at the intersection of Fillmore street, when defendant's servants in charge of its south-bound car, negligently and carelessly and without using any care to control the movements and speed of said car or slow up or stop said car, caused and suffered said car to run upon said crossing and said street at a violent, excessive, and negligent speed, knocking down, running upon, and dragging the said George F. Eckhard, and causing the death of said George F. Eckhard; that an ordinance then in force required defendant's motormen and conductors to keep a vigilant watch for persons on foot, either upon defendant's tracks or moving towards them, and upon the first appearance of danger to stop the car within the shortest time and space possible; that at the time of the killing of said Eckhard these duties on the part of defendant's servants were neglected; that there was also in force at the time of the accident an ordinance which provided that a car should not be run at a greater speed than 10 miles per hour, at the place of the accident, and that the car was run at a greater rate of speed than specified in said ordinance, to wit, 20 miles per hour; and that the violation of said ordinance directly contributed to cause the death of said Eckhard. The answer was a general denial, and also contained a plea of contributory negligence, to wit: "That the death of plaintiff's husband was occasioned by his own carelessness and negligence in passing upon defendant's track in close proximity to defendant's moving car, without looking or listening for the approach of said car." To this plea there was interposed a general denial.

The testimony on part of plaintiff tends to show the following state of facts: That plaintiff is the widow of George F. Eckhard, deceased. On Sunday, December 15, 1901, deceased, who was a night watchman at the Missouri Furnace, left his home at the corner of Michigan avenue and Bates street at about 5:30 o'clock in the afternoon. That he was on his way to the place of his employment and after reaching Broadway proceeded south on the west side until he reached Fillmore street. That while he was crossing Fillmore street on the north crossing he was killed by being struck by the east front end of defendant's southbound car just as he was stepping off of the track. That Broadway is a north and south street, and Fillmore is an east and west street, running to the river, and crossing Broadway at about 6000 south. That the St. Louis Transit Company operates its lines along Broadway at that point and has a double track; the track for the north-bound cars being on the east side, and the track for south-bound cars being on the west side of Broadway. That there is only one crossing from the west to the east side of Broadway at that point, and that the crossing is on the north side of Fillmore street. That the east and west streets north of Fillmore street, in their respective order, beginning with the one nearest Fillmore street, are Ellwood street, Dover street, Caldwell street, Bates street, and Fassen street. That there is a grade immediately north of Fillmore street, and that from Fassen street to Fillmore street there is a fall of about 67 feet, and that in the first block north of Fillmore street there is a fall of 11 feet, and in the second block there is a fall of 14 feet. That the fall for the two blocks immediately north of Fillmore street is 25 feet. That from Fillmore street and Broadway a person could see north about a block and a half or two blocks, and that Broadway is straight from that distance, and the bend occurs after you pass that distance north of Fillmore street. The speed of the car was estimated by the various witnesses from 10 to 25 miles per hour. The evidence for plaintiff tended to show that deceased stopped on the west side of the north crossing of Fillmore street; that there was a north-bound car on the east track, and that after the north-bound car had passed the Fillmore street crossing deceased was still seen at the corner on the west side of the crossing; that the bell of the north-bound car was ringing, and that the car had passed over the north crossing before deceased undertook to cross; and that the bell on the south-bound car, which struck the deceased, was not ringing as it approached that crossing.

The facts as developed on the part of the defendant were substantially as follows:

Reuben Staten, a witness for the defendant, testified that he was standing on the corner of Broadway and Fillmore streets on the evening of this accident. He says that he was standing between 30 and 35 feet south— on the south side of the corner—from the corner, between 30 and 35 feet, and while he was there he saw a man undertake to go across the street and a car ran over him. At the time he saw him he did not know who the man was, but ascertained who he was directly afterwards. This witness says, in answer to a question, that the car was run on the plaintiff's husband when he stepped in the track; that he came from the west side of the street; that a mail car was coming north and there was a passenger car going south, and it looked to him as if Eckhard thought he could cross. The witness then states that Eckhard stepped out in the track and the car ran over him. The witness does not undertake to fix the length of time after the deceased stepped onto the track before the car struck him; in answer to a question, says it was done "just in a jiffy— just stepped out in the track." He says the car was lighted, and that he, the witness, was standing on the south side of Fillmore, between 30 and 35 feet south of the curbstone and on the west side of the car track. It is also stated by this witness that just before plaintiff's husband went onto the track he was looking right straight in front of him; didn't turn his head: "He looked neither north or south. He looked to me as though he was looking at the mail car." The mail car was in the direction in which he was looking. This witness further states, in answer to questions, that before deceased stepped onto the track the mail car had passed north. That statement is then qualified, by his saying that the two cars came almost exactly on the crossing together. Then the further statement is made, in...

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