Goggin v. Wells

• Decision Date: 06 March 1923
• Docket Number: No. 17468.,17468.
• Citation: 249 S.W. 702
• Parties: GOGGIN v. WELLS.
• Court: Missouri Court of Appeals

249 S.W. 702

GOGGIN v. WELLS.

No. 17468.

St. Louis Court of Appeals, Missouri.

March 6, 1923.

Appeal from St. Louis Circuit Court; Hugo Grimm, Judge.

"Not to be officially published."

Action by Henry C. Goggin against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. W. Bates, T. B. Francis, and G. T. Priest, all of St. Louis, for appellant.

Chas. E. Morrow and N. Murry Edwards, both of St. Louis, for respondent.

DAUES, J.

This is an action for damages for personal injuries alleged to have been received by plaintiff resulting from being struck by one of defendant's street cars at Billon and Manchester avenues in the city of St. Louis. The specifications of negligence in the petition are: Violation of the speed and vigilant watch ordinances of the city of St. Louis; common-law assignment of a negligent rate of speed; and the humanitarian rule. The answer is a general denial and a plea of specific acts of negligence of the plaintiff, which allegations we will consider as sufficient to tender the issue of contributory negligence. The reply is a general denial. There was a verdict for plaintiff for $7,500. Plaintiff remitted $2,500. From a judgment for $5,000, defendant appeals.

The evidence tends to show that plaintiff, a man then about 55 years of age, was struck by defendant's street car on the night of April 19, 1919, at the place above mentioned. Billon avenue runs north and south, and intersects Manchester avenue at right angles. Billon avenue, however, does not extend beyond Manchester avenue to the south. Defendant has a double line of car tracks laid in Manchester avenue, running cars westwardly on the north line and eastwardly the south line. The grade at Billon avenue is a slight rise towards the east. There was a cinder platform, or landing place for passengers, on the south of the east-bound tracks and beginning at a point about even with the west line of Billon avenue, and extending west along the track about the length of a street car. It was shown that cars running east, and accordingly being on the south track, stopped at this landing place to permit passengers to alight from and get on cars. The distance from the north curb of Manchester avenue to the first, or north, rail was about 30 feet. There was a lighted street lamp on the north side of Manchester avenue at this intersection.

Plaintiff was a former employé of the street car company, now under control of defendant as receiver, and as a conductor on these street cars for about 10 years he knew of the existence and the location of the cinder platform on Manchester avenue, and himself had gotten off and on street cars at this point innumerable times. Directly concerning the accident plaintiff testified that he had attended a lodge meeting on the west side of Billon avenue on that night, and as he started home he went south on the west side of Billon avenue to Manchester avenue. When he reached Manchester avenue he said he saw a street car about a block west of him coming east on the south track. He then saw a man on the south side of Manchester avenue standing on this cinder platform, and as plaintiff was proceeding across the street he noticed this man on the cinder walk raise his hand and signal the motorman to stop. Plaintiff says that when he was on the north rail of the track upon which the car was running, that is, being the third rail from the north, he saw that the car was then about 35 or 40 feet away. He motioned with his hand to the motorman to stop, and he thought the car was going to slow up and stop at this platform where the man was standing. When he discovered, however, that the car was bearing down upon him, he hastened, but was struck just as he had cleared the last or south rail. The car struck him on the right side, knocked him down, throwing him "longways of the cinder walk right at the side of the track." He testified further that he was thrown eastwardly and to the south of the tracks. The car was stopped about 150 feet beyond where he was thrown. He further testified that he was struck by the south front corner of the car, and that he was almost clear of the car when hurt. Plaintiff estimated the rate the car was traveling when he first saw same a block west, at 18 or 20 miles per hour, and that he could not tell when he got at the track, the car then being about 40 feet from him, how fast same was traveling, because he says he was almost directly in line with the car, and that he thought the car was going to stop.

In the plaintiff's cross-examination the court asked plaintiff this question: "He asked you how fast was the car going?" To which plaintiff answered: "I never give it any thought at that present moment. It was coming towards me, and I was supposing it was going to stop." That portion of the answer that he "supposed the car was going to stop" was stricken out by the court. This question and answer follows the plaintiff's statement that when he arrived at the track upon which the car was then running same was about 35 or 40 feet from him.

Plaintiff testified that he was an old conductor, and was familiar with the speed of street cars and with the manner of operating same; that he estimated that the car was traveling from 15 to 18 miles an hour, this from the circumstances of the accident, and that he did not realize at the time he started across the tracks that the car was running that fast, or he would not have undertaken to cross the tracks, saying:

"When I looked up and saw it coming as fast as it was, I seen it was bearing down on me fast, and I was trying to get out of the way when it hit me; the force it hit me, and the way it knocked me and the space it run after it knocked me down it was bound to be coming that fast (15 or 18 miles) to take 150 feet to stop it in."

Plaintiff was struck, as already stated, after he had crossed the last rail of the eastbound track, and was almost out of the danger zone. The street car, it appears, ran 150 feet or more after plaintiff was struck before it was stopped.

Witness Heininger, testifying for plaintiff, said that he followed closely behind plaintiff, coming from" the same lodge, and that when the car passed him at the place where plaintiff was injured it was traveling 20 miles an hour. Another witness, Blum, said the car at the time plaintiff was struck was running from 15 to 18 miles an hour. There was evidence for plaintiff that no bell or gong was sounded from the street car, and that the car did not slacken at the cinder path, and not until after plaintiff was struck. Plaintiff stated that the car in question and under circumstances there presented could have been stopped in 20 feet if it were traveling 10 miles an hour, in 40 feet going 15 miles an hour, and in 60 feet going 20 miles an hour.

At the close of plaintiff's case, the defendant requested an instruction in the nature of a demurrer to the evidence, which demurrer was a general one. This being overruled, defendant rested.

Plaintiff requested but one instruction, and that was on the measure of damages. This, when modified by the court, was given. The defendant requested two instructions beyond the demurrer to the evidence. The...