Gettys v. St. Louis Transit Co.

• Decision Date: 15 December 1903
• Citation: 103 Mo. App. 564,78 S.W. 82
• Parties: GETTYS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

78 S.W. 82

103 Mo. App. 564

GETTYS v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

STREET RAILWAYS—PERSONAL INJURIES—COLLISION WITH VEHICLE—CONTRIBUTORY NEGLIGENCE—VIGILANT WATCH ORDINANCE.

1. Where plaintiff, having her horse under perfect control, deliberately drove on a street car track, facing, and from 30 to 200 feet distant from, a car approaching at ordinary speed, and waited for another person to get into the buggy, and the car failed to stop until just as it struck the buggy, throwing plaintiff out, she was guilty of contributory negligence, and, in absence of willful negligence by the motorman, could not recover by virtue of an ordinance requiring the motorman to keep vigilant watch for persons and vehicles approaching the track, and to stop on the first appearance of danger.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Emily B. Gettys against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehmann, for appellant. A. R. Taylor, for respondent.

GOODE, J.

This plaintiff should have been nonsuited, as requested by the defendant, for the reason that all the evidence shows she was injured because of her own carelessness. One of the defendant's street cars ran into a buggy in which she was seated on September 23, 1902. The accident occurred in the daytime on Olive street, between Sarah and Whittier streets, in the city of St. Louis. The allegations of negligence, as stated by plaintiff's counsel in his brief, are these: "First. Common-law negligence, in running the car without using any care to watch for vehicles on defendant's tracks, and without using any care to control or stop the car, and without giving any signal by bell or otherwise, which negligent acts are alleged to have caused the collision and respondent's damages. Second. The vigilant watch ordinance, and its violation, which violation of said ordinance is alleged to have directly contributed to cause plaintiff's injuries."

No evidence was introduced by the defendant, and but two witnesses in behalf of plaintiff, besides the physician who attended her. She was one of those witnesses, and her account of the accident is that on the day mentioned she ordered her horse and buggy from Scott & Lynch, liverymen, whose stable is on the west side of Olive street. She took a friend out driving, and, after the drive was over, started to the livery stable with the horse and buggy. She drove along Sarah to Olive street, and, on reaching the latter, turned west along the north side of it. She drove on Olive street until she reached the Westminster Laundry, on the north side, in front of which a wagon was standing. The wagon was close to the curb, and she could have gone around it by driving with the left wheels of the buggy inside the north rail of the north track; there being two tracks on Olive street, of which the north one is used by west-bound, and the south one by east-bound, cars. But the livery stable where she kept her horse was diagonally across the street from the laundry, and she desired to get a boy from that stable to go home with her and bring the horse and buggy back to the stable. So, instead of driving around the wagon, she drove across the north track, and stopped on the south one, with the buggy standing in the track, and the horse headed northwest. Her intention was to pick up the boy, and then drive again to the north side of Olive street and proceed to her home. According to her own testimony, when she drove on the south track and stopped for the boy she saw an east-bound car coming directly toward her, and knew it would strike the buggy. The effect of her testimony on this point is disputed by her counsel, and, to show what it is, we will quote some excerpts, but we cannot quote it all: "Q. Which side of your buggy did the colored boy get into? A. Onto my left. Q. When your buggy stopped there for the purpose of his getting in, how far away was that car? A. Well, it was farther away than from here to the door. Q. Well, how much further? A. I don't know. Perhaps from here to over at the corner [far corner]. Q. How long did it take the boy to come from the stable to get into the buggy? A. Why, it didn't take him any length of time at all, because Mr. Scott saw me, and sent the boy across to get into the buggy. I didn't have to go all the way across. Q. How far did the boy have to come to get to the buggy—to get into it? A. Well, just from the stable to that track, where my buggy was. Q. Of course. How far would that be Mrs. Gettys? Because we do not know. A. Well, about from here to you, where I am. Q. Only that far? A. Yes, sir. Q. Your buggy was standing in the manner in which you have described it, and the colored boy came from the stable about that distance? A. Yes, sir. Q. And got into your buggy. Now, what was the car doing all that time? A. Why, it was coming toward me. It didn't make any effort whatever to stop. He could have stopped. He could have avoided the accident if he had wanted to. He didn't make any effort until he crashed into the buggy and threw me out. * * * Q. What did you do in order to get across? A. Well, I saw the car approaching me, and it didn't make any effort to stop, and jerked my horse this way, so that he would not be struck with the car, even if the rest was. Q. You jerked your horse which way? A. North. Q. That would be to the right? A. Yes, sir. Q. You pulled him out to the right? A. Yes, sir. Q. When you pulled your horse that way, what occurred? A. The car ran right into my buggy. Q. What part of your buggy did it run into? A. The left side. The south side of it. Q. What portion of the buggy did it hit—the front wheels or the hind wheels? A. It hit the front wheel and part of the dashboard, and injured both wheels. Q. It hit both wheels? A. Yes, sir. Q. When the car hit your buggy, describe to the jury what became of you? A. Why, I was thrown out." On cross-examination she said if she had not seen the wagon in front of the laundry she would have stayed on her own side of the street, and, as Mr. Scott, the liveryman, was standing in the door of the stable, he would have sent the boy to her; but, as the wagon was in the way, she drove across to the south track to get the boy. She testified further as follows: "Q. Did Mr. Scott halloo to you, or say anything to you? A. No, sir; he just nodded his head. That was all. Q. Bowed to you? A. Yes, sir. Q. Do you know why he sent the little negro over? A. Well, I suppose he saw the car coming. I don't know, I am sure. He can answer that for himself. Q. Did you see the car coming? A. Yes, sir. Q. Now, were you in control of your horse? A. Yes, sir. Q. You had your horse under control? A. I always have had. Q. Well, I mean on that occasion? A. Yes, sir. Q. The horse was under perfect control? A. Yes, sir. Q. You saw the car? A. I did. Q. You knew where you were going? A. Yes,...