Fry v. St. Louis Transit Company

• Decision Date: 07 March 1905
• Citation: 85 S.W. 960,111 Mo.App. 324
• Parties: FRY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

85 S.W. 960

111 Mo.App. 324

FRY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1905

Appeal from St. Louis City Circuit Court.--Hon. W. B. Douglas Judge.

REVERSED AND REMANDED.

STATEMENT.

This is an action to recover for the loss of the services of the plaintiff's minor son Walter Fry, and the expense of his medical treatment and nursing. The damages prayed are alleged to have been the result of an accident caused by the negligence of the defendant company's servants in running a trolley car over the boy. The facts of the accident, as narrated by plaintiff's witnesses, were that Walter Fry took passage on a car at Eighteenth and Papin streets to be carried to Ohio and Chouteau avenues. He traveled along Papin street some distance and afterwards on Chouteau avenue to its intersection with Ohio, where he intended to and did get off. The car slackened speed but did not stop at his alighting point, which was the east crossing of Ohio avenue. He stepped off the rear steps on the north side, and as the car was in motion at the time, the impetus he was under bore him several steps forward, or northwest; but he landed safely and the car went on. Wishing to go south after alighting, when he recovered himself he turned around and "trotted back", as he expressed it, across Chouteau avenue. At that moment another car, which was passing in a direction opposite to the movement of the one he had been traveling in knocked him down and ran over him. He swore that before he ventured to cross the street and while he was still north of the north track, he looked both east and west but saw no car coming; though he admitted his view was unobstructed. After crossing the north track, and while he was between that track and the south one, on which east bound cars traveled, and along which the car that hurt him came, he again looked and saw that car five or six feet away. He supposed he could get across the track before it would reach him and made the attempt; but was caught on the fender, carried a short distance by it, then rolled off and was run over by the fender and the front wheels. It is in testimony that when he was extricated from under the car, he was between the front and the rear wheels of the front truck. One of his arms was so badly crushed that it had to be amputated. Four, or possibly five, acts of negligence are alleged. The first is that the operatives of the car on which the boy traveled instead of stopping at the Ohio avenue crossing, only slackened speed, forcing him to step off while the car was in motion. The second, third and fourth specifications of negligence are the failure of the motorman of the car which struck the plaintiff's son to keep a vigilant watch for persons on the crossing, or use any effort to control the car or stop it and avert an injury to the boy, or to give warning by bell, or otherwise, of the car's approach to the crossing. The fifth act of negligence pleaded, if it be not embraced in those just stated, was non-compliance with the vigilant watch ordinance of the city of St. Louis.

We will copy those specifications of negligence as they are averred in the petition:

"That plaintiff's said son did alight from said car at or near his said destination and after so alighting started southward across Chouteau avenue on the west crossing of said avenues and whilst said son was so on said crossing, defendant's motorman and conductor in charge of its east bound car carelessly and negligently, without keeping any watch for persons on said crossing in danger from said car, and without using any care to control said car or stop it and avert injuries to the plaintiff's son, and without giving any warning by bell or otherwise to plaintiff's son of the approach of said car, caused and suffered said car to run upon and crush and drag said son and so injure his left arm and shoulder as to necessitate amputation at or near the shoulder.

"And for another further assignment of negligence the plaintiff avers that at the time of said injuries to his son there was in force within the city of St. Louis an ordinance thereof whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for persons on foot, especially children, either on the track or moving towards it, and upon the first appearance of danger to such child, the car should be stopped within the shortest time and space possible. And plaintiff avers that at the time of said injuries to his son, defendant's conductor and motorman in charge of said car failed to keep such vigilant watch and failed to stop said car and thereby directly contributed to cause said injuries to the plaintiff's son."

The answer set up, besides a general denial, that the injured boy, Walter Fry, carelessly ran on the south track in front of said car which struck him, without looking for approaching cars, when, by taking that precaution, he could have avoided the collision. Walter testified that he had been going to the grocery store that was his destination that day, every day for a month, sometimes riding on a car and sometimes walking and that he had been in the habit of getting off cars at the same Ohio avenue crossing. He testified that he went slowly across the track, neither running nor walking, "but a kind of a trot," and then said:

"Q. While you were trotting across did you again look west to see if a car was coming before you got on the track? A. Yes.

"Q. Now, at what point was it that you looked west again before you got on the track--before you got on the south track when was the last time you looked west? A. I was pretty near on the track when I looked west again.

"Q. Pretty near on the track? A. Yes.

"Q. Does that mean that you were on the north track--that is, the west bound track--or that you were between the north track, west-bound track and the east-bound track? A. I was between the tracks; I was between the tracks.

"Q. The next time you looked west after you started across you were between the two tracks, then you looked west and you saw this car right on you, didn't you? A. Yes.

"Q. Now, son, why didn't you stop where you were instead of going right in front of that car? A. I tried to make it across to the other side.

"Q. The reason you did not stop was you thought you could get across before it would strike you--that is right, is it not? A. Yes, sir.

"Q. You saw it, and you saw it within four or five, or five or six feet of you, and yet you thought you could get across before it would strike you, isn't that it? A. Yes."

The Court: "Where were you when you saw it the last time? A. I was between the tracks.

"Q. What point between the tracks--that is, between the north track and the south track? A. Yes."

There was testimony to prove the car that struck the boy was running fifteen or twenty miles an hour and that no bell was rung as it drew near the crossing.

The motorman's testimony coincided with Walter Fry's and is that Walter was only five or six feet ahead of the car when he first came into the motorman's sight. The latter testified as follows:

"Where was the little boy when you first saw him? A. He came out of the back, the rear end of the west bound car at this point, and he came across in a little trot, and he stopped about the center of the strip between the tracks.

"Q. In between the north track and the south track he stopped? A. Yes, just for an instant; I was probably five or six feet from him and then he started ahead again.

"Q. Now, after he stopped and then started across the track, after he started forward again, state whether or not it was possible for you to prevent striking him? A. I could not; no man living could prevent striking him, and I stopped the car just as quickly as possible."

The case was submitted to the jury on the question of whether the company's servants were negligent in failing to keep a vigilant watch so as to stop the car on the first appearance of danger to the plaintiff's son, or to signal by bell or otherwise the car's approach to the crossing.

The court gave two main instructions at the request of the plaintiff, submitting the theories on which he would be entitled to a verdict. The first one told the jury, in substance, to return a verdict for him if they found his son was struck by the car while on the crossing and in the exercise of ordinary care, considering his age and discretion, provided they found from the evidence "that at and before striking plaintiff's son, defendant's motorman on its said car controlling its motion, failed to keep a vigilant watch for persons on foot, especially children, either on defendant's track or moving toward it and in danger of being struck by said car, or failed to stop said car upon the first appearance of danger to plaintiff's son on defendant's track or moving toward it, within the shortest time and space practicable with the means and appliances at hand and with safety to said car and its passengers, and that such failure to keep such vigilant watch and stop said car, directly, contributed to cause said car to so strike and injure the plaintiff's son."

The second instruction given for the plaintiff directed a verdict for him if the jury found that as the car approached the crossing, no bell or signal of its approach was given, that the failure to give it contributed to cause the accident and that in such failure defendant's motorman and conductor did not exercise ordinary care, while the boy was guilty of no negligent conduct, or none that caused the injury.

There was a verdict for the plaintiff and the defendant appealed.

Judgment reversed and cause remanded.

Boyle, Priest & Lehmann, Crawley & Jamison, John T. Gose for appellant.

(1) The court's refusal of defendant...