Godfrey v. St. Louis Transit Co.

• Decision Date: 10 May 1904
• Citation: 107 Mo. App. 193,81 S.W. 1230
• Court: Missouri Court of Appeals
• Parties: GODFREY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

81 S.W. 1230

107 Mo. App. 193

GODFREY v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

May 10, 1904.

MASTER AND SERVANT—STREET RAILROADS—INJURIES TO SERVANT—NEGLIGENCE OF MOTORMAN —FELLOW SERVANTS—DUTY OF MASTER— LIGHTING TRACK.

1. A street car company maintained lights at a curve, not for the benefit of its employés, but for convenience of passengers, and adopted a rule requiring the lights to be turned out at 2 o'clock a. m. The motorman of a car on which plaintiff was employed as conductor, while approaching the curve between 5 and 6 o'clock a. m., while it was still dark, saw a light further

ahead in the same line of vision that the curve lights would be, and mistook such light for the curve lights, believing them to be still burning, and failed to slacken speed for the curve until he struck the same, by reason whereof plaintiff was thrown from the car and injured. Held, that since, under the custom to extinguish the lights at 2 o'clock a. m., the motorman had no right to expect them to be still burning, plaintiff's injury was the proximate result of the negligence of his fellow servant, for which defendant was not liable.

2. A statute providing that every railroad corporation owning or operating a railroad shall be liable for all damages sustained by any servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof does not apply to street railroads.

3. A street railway company, in the exercise of reasonable care, was not required to keep a light burning at a curve of the track in order to indicate to motormen where the same was located to enable them to reduce the speed of their cars before turning the curve.

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Action by John J. Godfrey against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Keskaddon & Mathews, for appellant. A. R. Taylor and Robt. Schackleford, for respondent.

GOODE, J.

Action for personal injuries sustained by the plaintiff December 8, 1902, by being hurled through a window of a trolley car to the ground. Plaintiff was the conductor of the car, which ran on the Clayton Division of the St. Louis Transit Company's line. Clayton is the county seat of St. Louis county, and eight or ten miles from the city of St. Louis. The car started from its station or shed at Forsyth Junction at 5:45 in the morning of the day of the accident, in charge of the plaintiff as conductor and Philip Sheridan as motorman. The morning was dark, and, though the car was provided with an overhead electric headlight of 16 candle power, there is testimony that it illuminated the track for not more than 12 or 15 feet ahead. Where the track crosses Skinker Road, just inside the limits of the city of St. Louis, it veers southward around a sharp bend, and cars had run off the track there previously, and in daylight. Two months or more before the accident, a cluster of four or five electric lights had been placed at that curve. There is testimony that this was done at the request and for the convenience of persons working on the World's Fair Grounds, who get on and off cars there. These lights were turned on at dusk, and usually, but not invariably, extinguished at 2 o'clock in the morning, pursuant to an order that had been issued to the operatives of night cars on the route; but the operatives of the car in question knew nothing of the order so far as the proof shows. On the morning in question, and at the time of the accident, the lights were not shining. The petition charges that the curve was dangerous to cars when running at speed, and therefore the defendant had provided the lights as a beacon to its car operatives in order to warn them of the approach of a car to the curve and the need of reducing speed so as to avoid a shock. The specific negligence alleged as the basis of recovery is that on the morning of the accident the defendant and its agents and servants charged with keeping the track in repair and said place lighted neglected to have said lights shining, thereby rendering it impossible for the motorman of the car in question to know the proximity of the curve as he approached and ran on it. When the curve was reached, the car was running at a speed of from 10 to 15 miles an hour, and the result of the reduction of speed consequent on striking the curve was to hurl both the motorman and the conductor from the car and injure them. Plaintiff was thrown through the rear window on the right side to the ground, and rendered unconscious for five minutes. Two of his ribs were broken. Three or four persons were on the car at the time, and other persons were near, all of whom testified the lights were out. The motorman swore he was misled by a light which shone through a window of the electric power house at the Administration Building on the World's Fair Grounds; that he mistook that light for the cluster at the curve, and, as it was further away, did not suppose he was near the curve, and hence had not reduced speed. When the clustered lights were shining, he could see three blocks, or 900 feet, ahead, he said, but could not see more than 10 or 15 feet that morning. Other testimony went to show the headlight enabled him to see the track 100 or 150 feet ahead, and that a car running at 12 miles an hour could be checked in 80 feet. In passing around the curve safety required the speed to be reduced to not more than 2½ miles an hour. The motorman and conductor of the car in question had been running over that route for a year or more, and were familiar with it. The trial court instructed the jury on the theory that, if the negligence of the motorman was the sole cause of the accident, the plaintiff could not recover, as the two were fellow servants; but that, if the jury found the accident was due to the absence of a light, and a consequent inability of the carmen to see the curve in time to slacken speed, and that the defendant and its agents charged with the duty of keeping its tracks in a safe condition were guilty of want of ordinary care in failing to have lights burning at or near the curve, so as to enable the car crew to realize its proximity and reduce speed, the defendant was liable. There was a verdict for the plaintiff for $1,000, judgment accordingly, and defendant appealed.

These distinct theories of a possible liability on the part of the defendant demand attention: First, that it negligently permitted the lamps which were usually burning at night to be out when the accident...