Friedman v. United Rys. Co.

• Decision Date: 18 September 1923
• Docket Number: No. 17696.,17696.
• Parties: FRIEDMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

254 S.W. 556

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

No. 17696.

St. Louis Court of Appeals. Missouri.

September 18, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Samuel Friedman against the United Railways Company of St. Louis, From a judgment for the plaintiff, defendant appeals. Affirmed.

See, also, 293 Mo. 235, 238 S. W. 1074.

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

Charles W. Rutledge and Karl M. Vetsburg, both of St. Louis, for respondent.

SUTTON, C.

This is an action for damages resulting from a collision of the defendant's street car with the plaintiff's automobile. The collision occurred about 8:30 o'clock in the evening of September 4, 1918, at the intersection of Kingshighway boulevard with Wise avenue, in the city of St. Louis, Mo.

The defendant's street car tracks run north and south on Kingshighway and over the intersection of Kingshighway and Wise avenue. Kingshighway is about 45 to 50 feet wide between the west curb and defendant's south-bound street car track. The automobile traffic travels both north and south on the west side of the street car tracks. There is a space east of the street car tracks about 10 feet wide where northbound automobiles and other vehicles travel.

Plaintiff was driving his automobile southward on the west side of Kingshighway boulevard; his wife was in the automobile with him. On arriving at Wise avenue, plaintiff, desiring to cross Kingshighway to the east, threw out his left hand and turned his automobile slightly towards the east, and stopped and looked for passing street cars and automobiles.

There was a great deal of traffic, both street cars and automobiles, at that place. Most of the automobile traffic on Kingshighway, both north-bound and south-bound, was on the west side of the street car tracks. When plaintiff stopped his automobile to look for the traffic, he remained stationary long enough for about a half dozen automobiles to pass him both ways. He looked to the south to see if there were any street cars coming north and also to the north to see if there were any street cars coming south, and saw none. He then started up his automobile slowly and when he had arrived at about the middle of the space between the west curb and the street car tracks, he saw a street car about three hundred feet to the north, traveling south on Kingshighway towards the intersection of Kingshighway and Wise avenue. He also saw a street car standing an defendant's north-bound track about 150 feet to the south, which he thought might start northward. Automobiles were passing, traveling both north and south; plaintiff's automobile was moving a little north of east, almost directly east. When plaintiff was about 12 feet from the south-bound street car track, he saw defendant's car moving southward about 125 or 150 feet to the north. When plaintiff was 8 feet from the south-bound street car track, he saw the south-bound street car about 80 feet to the north. Plaintiff's automobile was moving then from seven to ten miles per hour. He could not watch the street car all the time on account of having to watch automobile traffic going north and the street car standing on defendant's tracks to the south, and plaintiff did not again see the south-bound street car until the collision occurred, or just an instant before the collision occurred, when it was too late to stop his automobile and avoid the collision just before the collision, and when the plaintiff was eight feet from the south-bound street car track, a north-bound automobile cut in ahead of plaintiff's automobile, swerved into the street car tracks running between plaintiff and the south-bound street car, proceeding northward west of the track and obstructing plaintiff's view of the track and the street car for an instant. Immediately after this north-bound automobile passed the collision occurred. Defendant's street car which collided with plaintiff's automobile, when approaching the crossing and the point of collision, was running from 20 to 30 miles per hour in violation of an ordinance of the city of St. Louis, prohibiting a greater rate of speed than 15 miles per hour in that Part of the city, and providing that the ordinance should not be construed as sanctioning or allowing any car at any time or place to run at any rate of speed which may be dangerous to the safety of passengers or persons on the street. One of the witnesses described the speed of the street car as "terrific." Plaintiff stated that, from his viewpoint, he was unable to determine the speed of the car with which he collided as he could only observe the car at an acute angle, and that he presumed that if the street car was traveling at a reasonable rate of speed, the way street cars do travel, and should travel, he would have had plenty of time to clear the track; that the street car was 60 feet away when he was within 8 feet of the rail, and that he did not suspect the car was running at such a rapid rate of speed; that he believed the car was a sufficient distance away to permit him to cross the track in safety; that his automobile running seven miles per hour could have been stopped at a distance between 5 and 6 feet; that if he had stopped his automobile when he was nearing the railway track and within 8 feet of the rail, he would have been in danger of being hit by automobiles, and that it was impossible for him to stop or slow down and not get into an accident, because the traffic was going both ways then. The front of plaintiff's automobile collided with the front end of the street car. The impact of the collision knocked the plaintiff's automobile about 15 feet back into Kingshighway. Plaintiff's wife was hurled through the windshield, and fell into the street in front of the automobile. She was seriously injured; plaintiff received minor personal injuries, and his automobile was damaged.

The cause was tried to a jury; there was a verdict and judgment in favor of the plaintiff for $2,500, and the defendant appealed.

H. The court instructed the jury that if the defendant's motorman ran the car which collided with plaintiff's automobile at a rate of speed greater than 15 miles per hour, or at any rate of speed dangerous to the safety of persons and vehicles, and that such rate of speed caused the collision, and plaintiff was in the exercise of ordinary care at the time, then the verdict should be for the plaintiff; and the defendant complains of the giving of this instruction on the ground that the evidence shows contributory negligence on the part of the plaintiff as a matter of law, and on the same ground urges that its demurrer to the evidence ought to have been sustained.

If the plaintiff used ordinary care to determine the speed of the approaching street car and was unable to do so, it was not then required of him to anticipate that the approaching car would proceed at an unlawful or unusual rate of speed, and he will not be charged with negligence, as a matter of law, in attempting to cross the track, if, in view of the distance at which the track seemed to be clear, he would have had time to cross the track before the car going at the usual and lawful speed would reach the crossing. Having used ordinary care to determine the speed of the approaching car, and failing to do so, he was entitled to assume that in handling the car the defendant's motorman would act with appropriate care, would be attentive and vigilant, and would not run the car at an unlawful, dangerous, or negligent...