Frank v. St. Louis Transit Co.

• Decision Date: 02 May 1905
• Parties: FRANK v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

87 S.W. 88

112 Mo. App. 496

FRANK v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

STREET RAILROADS—PERSONAL INJURIES—COLLISION WITH VEHICLE—CONTRIBUTORY NEGLIGENCE—DUTY TO LOOK AND LISTEN—DISCOVERED PERIL — EVIDENCE — QUESTION FOR JURY.

1. In an action against a street railroad company for personal injuries caused by collision of defendant's car with plaintiff's vehicle, evidence held to justify submission of the issues of negligence and contributory negligence to the jury.

2. In an action against a street railroad company for injuries caused by collision of a car with plaintiff's wagon as plaintiff was attempting to cross the tracks, there was evidence that plaintiff was negligent in pausing before starting to cross the tracks, and then attempting to cross after the motorman had proceeded under the impression that plaintiff intended to stop. Defendant requested an instruction that it was the duty of plaintiff to have exercised ordinary care and to look and listen, and that, even though the gong was not sounded, still if plaintiff could, by ordinary care, have stopped in time to avert the collision, they should find for defendant. The court modified the instruction by adding the words: "Provided that you find that he did fail to exercise such care, and that his failure to exercise such care directly contributed to plaintiff's injury, and that the defendant, by the exercise of ordinary care after the plaintiff was, or by the exercise of ordinary care might have been, discovered to be in a position of danger, might have stopped the car by the use of the appliances at hand, and without danger to the persons on the car, and so have avoided injury, and that the defendant failed so to do." Held, that the modification rendered the instruction unintelligible.

3. Where plaintiff attempted to cross defendant's street car tracks without looking or listening, but at a time when he could have safely crossed had not his progress been prevented by an excavation of which he had no knowledge and which compelled him to stop so that he was struck by a car, his failure to look and listen did not preclude a recovery.

4. Where the negligence of one injured by a collision on a street railroad track directly contributed to the injury, he could not recover if the motorman was merely negligent, but might recover if the motorman was guilty of reckless or wanton misconduct, and could have stopped the car in time to avoid injury after discovering the danger.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Valentine Frank against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Frank K. Ryan and E. P. Johnson, for respondent.

Statement.

GOODE, J.

The plaintiff was severely hurt by one of the defendant's trolley cars of the summer pattern. The accident happened at the intersection of Jefferson and Sullivan avenues in the city of St. Louis, at 6:40 p. m., September 21, 1903. Jefferson avenue is a north and south thoroughfare, and Sullivan avenue an east and west one. The defendant's parallel tracks extend along Jefferson avenue. South-bound cars run on the west track and north-bound cars on the east one. At the time of the accident the east driveway of Jefferson avenue between defendant's east track and the curbstone was in the process of paving, and excavated to the depth of 18 inches. This excavation extended for a block north and south of Sullivan avenue, except a narrow strip across Jefferson avenue at the intersection with Sullivan, which had been left undisturbed so that vehicles could be driven over it. The excavating work was done by an independent contractor acting under a contract with the city of St. Louis. At the hour of the accident no red lights or other danger signal had been set out to warn persons who approached the locality that travel was obstructed. The dusk of evening was just coming on, and likely warning lights would have been placed soon. Jefferson avenue is 60 feet wide. The next street north of and parallel with Sullivan is Hebert, distant about 315 feet. The defendant's south-bound cars turn into Jefferson avenue at Hebert street. The next street south of and parallel with Sullivan is Dodier, distant 239 feet, and the next street parallel to that toward the south is University. Plaintiff approached Jefferson avenue along Sullivan from the west, driving to the east. He swore that on entering Jefferson avenue he looked north and south, but saw no car in either direction, though he sould see southwardly about three blocks. He drove on the tracks intending to cross Jefferson avenue and continue his course east of it along Sullivan avenue, but when his mule got on the east car track, plaintiff discovered the excavation; that it obstructed his progress eastward along the line he was following, and he would have to veer northwardly and drive over the strip left unexcavated—the miniature causeway, so to speak. Just as he drove his mule on the east track he saw a south-bound car turning into Jefferson avenue around the curve of Hebert street. That car advanced southward along Jefferson avenue on the west car track, and threatened to collide with plaintiff's wagon, the rear of which stood on the west track. Plaintiff swore it was impossible to turn around and thus extricate himself from his position on account of the rapid approach of the car from the north; so he turned diagonally to the northeast, intending to cross the east car track on the portion of Jefferson avenue which had been left for a driveway. In making this movement, but before he could get his wagon out of the west track, a north-bound car on the east track came along at high speed, struck the right front wheels of the wagon and the mule, inflicting the injuries for which the plaintiff asked damages. Five acts of negligence are charged: That the motorman, in violation of an ordinance of the city of St. Louis, failed to keep vigilant watch ahead of his car for vehicles on the track or moving toward it; failed to stop his car in the shortest time and space possible at the first appearance of danger to the plaintiff; ran his car at a greater speed than ten miles an hour, in violation of a city ordinance; ran past the south-bound car at a point where passengers might alight at a greater speed than three miles an hour, in violation of a city ordinance; and gave no warning of the approach of his car by ringing the bell. The answer pleaded in defense a general denial, and that plaintiff's injuries were caused by his own carelessness in driving on the track in front of a moving car which was too near to be stopped before it reached him.

The testimony goes to show the northbound car, which did the mischief, was running very fast. It passed 50 or 60 feet beyond the point of collision, dragging along the mule and fragments of the demolished wagon. The concussion of the car threw one passenger to his feet, and hurled another from where he was sitting in the center of the car entirely out of the car and on the track in front of it. The plaintiff was oblivious of the approach of the north-bound car to the instant of the collision, because his attention was completely engrossed by the south-bound one, which he was endeavoring to avoid by driving in a northeasterly direction across the east track. The motorman of the north-bound car testified that when he was 150 feet south of Sullivan avenue he saw the plaintiff approach the tracks as if with the intention of crossing; that plaintiff came into Jefferson avenue from Sullivan in a trot; that plaintiff leaned forward, apparently looking to the south, and stopped his mule; that he (the motorman) had put on the brake of the car in order to stop when he first noticed the plaintiff, but when plaintiff stopped released the brake and sent his car ahead, and when it got within 50 feet of Sullivan avenue the wagon moved forward again, plaintiff urging his mule into a trot and going diagonally to the northeast; that the motorman then reversed the power, but before he could arrest the car it struck the front wheels of the wagon, and threw the wagon around to the northwest, and against the south-bound car. This witness testified that his car was running only from four to six miles an hour when the collision occurred, and had traveled from eight to ten miles an hour between Dodier street and Sullivan avenue. A witness for the plaintiff testified that he saw the north-bound car two blocks south of University street; that it came on under full speed, and without ringing a bell, struck the wagon, carried the front of it and the mule from 50 to 60 feet northward, and knocked the plaintiff into a state of unconsciousness. That witness said the car approached at a speed of at least 30 miles an hour; that as the plaintiff approached the tracks he was driving in a walk.

The court gave this instruction of its own motion: "(a) You are instructed that if you believe from the evidence that on the 21st day of September, 1903, the defendant was engaged in operating a street car line along Jefferson avenue, in the city of St. Louis, and that on said day the defendant negligently ran one of its cars against and upon a wagon being driven by the plaintiff, whereby the said wagon was broken, and the plaintiff was thrown therefrom and injured; and that the defendant's negligence consisted either in failing to keep a vigilant watch for vehicles either upon the track or moving toward it, and in failing to stop said car in the shortest time and space possible in the circumstances and with the appliances at hand without injury to the persons upon said car, after the danger of collision with said wagon was apparent to the motorman in charge of said car, or might have been apparent to him had he been exercising ordinary care to discern vehicles upon or approaching the track; or that the defendant was negligently...