Esstman v. United Rys. Co.

• Decision Date: 10 October 1919
• Docket Number: No. 20131.,20131.
• Parties: ESSTMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

216 S.W. 526

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

No. 20131.

Supreme Court of Missouri, Division No. 1.

October 10, 1919.

Respondent's Motion for Rehearing Denied December 1, 1919.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action by Abraham Esstman, by his next friend, Fannie Esstman, against the United Railways Company of St. Louis. From judgment for defendant, plaintiff appeals. Reversed, and cause remanded.

Sterling P. Bond, of St. Louis, for appellant.

George T. Priest, of St. Louis, for respondent.

RAGLAND, C.

On the 1st day of June, 1916, appellant, then a minor under four years of age, came into contact with one of respondent's electrically propelled cars while the same was being operated in a public street in the city of St. Louis, whereby one of his feet was so mangled that it was necessary to amputate a portion of the leg. He instituted this suit by next friend in the circuit court for said city to recover damages therefor, and, the trial resulting in a judgment adverse to him, he brings the case here for review by appeal.

The petition counts on the vigilant watch ordinance. The answer is a general denial.

The events leading up to and resulting in the injury occurred in that portion of North High street which lies between Biddle and Carr streets, both of which run east and west a block apart where they intersect High. On the day in question, respondent was operating its street cars on a single-track railway east on Biddle street to High, thence south on High to Carr street, and thence on south. On Carr street it was operating another line of railway running from west to east, and it always brought its cars proceeding south on High to a stop before entering upon and crossing Carr street. No exact measurements are given of the portion of High street lying between Biddle and Carr but from estimates given by witnesses it was approximately 300 feet long and 40 feet wide. The motorman on the car that caused, as it is alleged, appellant's injury, estimated that the sidewalk on the east side was 6 or 7 feet wide, and that the distance from the walk to the first rail of the street car track was 8 or 10 feet. Another witness for defendant (referring apparently to the distance between the walk on the east side and the first rail) estimated the same at 12 feet. The track was presumably in the center of the street. There was a continuous upgrade from Biddle to Carr, and at the time in question the street was open and clear and the rails were dry. The district referred to was a populous one. Appellant lived with his father and mother in rooms over a bakery conducted by the father in a building on the east side of High street, the second door north from Carr. He received his injury about 6 o'clock in the afternoon. The manner of his coming into contact with respondent's car is the subject of wide divergence of testimony between plaintiff's witnesses and defendant's. His mother testified that just prior thereto she and her husband were sitting out in front of the bakery, and that her son was crossing the street to play with other children on the sidewalk; that she and her husband then went inside, and she did not see her boy again until he was hurt. Four other witnesses for plaintiff, whose testimony as to essential matters is substantially the same, say that the appellant was crossing High street from the west to the east side, walking slowly; that when he reached a point 3 or 4 feet from the west rail one of respondent's cars going south was then 15 or 20 feet north of him running at the rate of 3 or 4 miles an hour; that both child and car continued to so proceed until the child was between the rails, but nearer the east rail, when he was struck and knocked down by the corner of the fender on the east side, his body falling for the most part east of the east rail, and one or more of the wheels of the truck on that side passed over his feet; that the point where the child was struck by the car was about 45 feet from Carr street.

The motorman who was operating the car, introduced as a witness by the defendant, testified, in substance, that when he turned off of Biddle street into High, he saw the child standing by himself on the sidewalk on the east side of High street about 70 feet north of Carr street with his face toward the wall of the adjacent building; that as the car proceeded down the street, running at the rate of about 6 miles an hour, he met a wagon going north; that just as the wagon passed the front trucks of the car, the child ran from the sidewalk immediately behind the wagon straight toward the center of the car; that he had kept his eye on the child all the while, saw him turn around and start toward the car, and saw him when he left the sidewalk about the time the wagon passed the front trucks of the car; that when the child left the sidewalk he began to stop the car, and that he stopped in about 5 feet, but before he had it stopped the rear trucks Passed over the child's foot; that the point where the child was run upon was about 70 feet from Carr street where he was going to stop; that he was running slower than 6 miles an hour at the time of the collision because he was approaching a regular stop; that the car was about 40 feet long; and that it was about 8 feet from the center of the back truck to the rear end. Asked specifically as to what point the boy ran into the car, he answered:

"I thought he would hit about the center of the car between the front and the back trucks."

Louis Kuntz, an engineer for a box company and a witness for defendant, testified in part as follows:

"I was about the third window back from the front end of the car. I was seated right next to the window. The window was open, and I was leaning against the open window, against the outside, those little bars there. Being tired, I was resting. My attention was first attracted to a boy about five or six feet away from the car, running as though he was to run right into the car opposite me, on the east side of the car. He continued going and seemingly as though he would strike the car right back of me, seemingly the seat back of me. I just tried to look at him until he just came about the car coming forward; passed out of my view just as I thought he was about to meet the car. With reference to where I was sitting, it was about one seat behind the first cross seat. I did not hear any scream immediately after that. After the accident had happened and the parents and the people came running to the track, some one screamed. The car stopped. I got off and picked the boy up myself. * * * I didn't see the boy on the sidewalk. My attention was attracted to him running right directly toward the car, about five or six feet from the car."

Another employé of respondent, who was at the time standing on the rear end of the platform of a car passing east on Carr street, claimed to have seen the occurrence, and testified that he saw the child come from the sidewalk on the east side of the street and run almost to the ear; that just before the child got to the car he fell, and his feet went first; the first wheel of the rear trucks passed over his foot; and that the accident happened about eight feet from the corner of Carr and Biddle. Other witnesses for the' defendant who did not claim to have seen the collision testified to facts from which it is inferable that the child same from the east side of the street to the car and not the west side.

Plaintiff introduced expert witnesses who testified as to the distance at which, in their opinion, the car in question could have been stopped. They varied in their estimates; if the car was running 3 miles an...