Green v. United Railways Company of St. Louis

• Court: Missouri Court of Appeals
• Writing for the Court: CAULFIELD, J.
• Citation: Green v. United Railways Company of St. Louis, 145 S.W. 861, 165 Mo.App. 14 (Mo. App. 1912)
• Decision Date: 02 April 1912
• Parties: HELEN GREEN et al., by MARY GREEN, Curatrix, Respondents, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

145 S.W. 861

165 Mo.App. 14

HELEN GREEN et al., by MARY GREEN, Curatrix, Respondents, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

April 2, 1912

Appeal from St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.

REVERSED AND REMANDED.

STATEMENT.--Plaintiffs who are minors, sue for the death of their father, hose wagon driver of the city fire department, who was killed in a collision between the hose wagon and defendant's street car, at Twenty-second and Olive streets in the city of St Louis. Plaintiffs had verdict and judgment for five thousand dollars and defendant has appealed.

The negligence relied upon as grounds of recovery in plaintiffs' petition is the violation by defendant of three city ordinances, which were introduced in evidence. The first gives fire apparatus the right of way upon any street when going to an alarm of fire and makes it a misdemeanor for any street car operative to carelessly obstruct or intercept such right of way; the second requires motormen to keep a vigilant watch for all vehicles moving towards the track and on the first appearance of danger to a vehicle to stop the car in the shortest time and space possible; the third prohibits the running of cars at a rate of speed exceeding ten miles per hour in a certain defined district, or at any other speed dangerous to persons on the streets. The defendant's answer consisted of a general denial followed by a plea of contributory negligence. The reply was a general denial.

At the time with which this case is concerned Olive street and Twenty-second street were and for a long time had been open and intersecting public streets in the city of St. Louis. Defendant operated a double track street railroad along Olive street and across Twenty-second street, the east bound cars running on the south track and the west bound cars on the north track. Each of the streets at the point of their intersection was thirty-six feet wide from curb to curb and sixty feet wide from building line to building line. Olive street sloped downward with rather a steep grade from the west into Twenty-second street and Twenty-second street sloped downward with a steeper grade from the north into Olive street. Olive street was paved with granite Twenty-second street with brick. Locust and St. Charles streets and Washington avenue ran parallel to Olive street and were also crossed or intersected by Twenty-second street. Locust street was the first street north of Olive street, St. Charles the second and Washington avenue the third. Pine street also ran parallel with Olive street and was the first street south of Olive street.

Plaintiff's evidence tends to prove that their father, James Green, who was young and of powerful build, great strength and good habits, was an experienced fireman, driver of a hose wagon in the fire department of the city of St. Louis. On January 30, 1905, about four-thirty o'clock in the afternoon the hose wagon and its crew, returning to quarters from a fire at Jefferson avenue and Olive street, had reached Twenty-second street and Washington avenue and were proceeding northwardly along Twenty-second street when another alarm reached them, this time from Twenty-second and Pine streets, due south along Twenty-second street. Green, who was driving, swung the team around and started south along Twenty-second street; Casserly sat on the seat beside him with his foot working the fire gong. This seat was over the front axle and some ten feet back of the horses' heads. Captain Brennan and Moore stood on the rear step. Shiveley stood up in the wagon. The hose lay coiled in the bottom of the wagon. The wagon with its load weighed two and one-half tons and was six or seven feet long and had a wheel gauge of four feet ten inches. The team trotted up an incline to St. Charles street, where the down slope of Twenty-second street toward the south began. Down this incline the team went at a gallop, but not exceeding the usual rate of speed going to a fire. Green, holding the lines, had his legs braced. Casserly was ringing the fire gong continuously. It was a dry, rather clear day, the gong rang loud and could be heard for three blocks around. They passed Locust street and started on toward Olive. But in Olive street a man stood waving westwardly as if at some one coming eastwardly along Olive street. Green slowed down the team at the alley, 105 feet north of Olive street, until a coal wagon on Olive street hove into view from the west and passed eastwardly across Twenty-second street. All this time the fire gong rang continuously. When the coal wagon passed, Green, as if he supposed that this was what the man had been waving at, let his horses go again and they started toward Olive street in a lope, though not so fast as they had been going before reaching the alley. When the wagon got near Olive street, Green started again to pull down his team, but the ground was sleety and slippery, the hose wagon heavy, and the horses' heads had reached the defendant's north track when those on the hose wagon saw defendant's eastbound car close by, coming from the west. Green was trying to stop the team, pulling so hard he seemed literally to lift them off their feet. He could not stop them. It was too late to swing them due east along the north track, so with a great pull on the lines he lifted the horses around and started them toward the southeast and tried to get across in front of the car. This maneuver was unsuccessful. At about the east building line of Twenty-second street, the left front corner of the car struck the right front wheel of the wagon, broke it and broke the tongue from the wagon, the horses escaping in safety on the south side of the car, leaving the wagon on the north side. The wagon tipped, Green fell, the car passed on until its rear end was about fifteen feet east of the east crossing over Twenty-second street. Green was under the front truck of the car suffering from injuries which caused his death some two months later. Plaintiffs' evidence tended to prove that defendant's street car approached Twenty-second street at a very high and dangerous rate of speed, fifteen or twenty miles an hour, and though signalled to by the man in the street, paid no attention and gave no signal by bell or otherwise, of its approach, and made no effort to stop or slacken speed until the collision was imminent and unavoidable. The evidence on the part of the defendant tended to prove that Green drove from down Twenty-second street from Locust street to Olive street at breakneck speed without a pause or care, urging the horses along until the collision was inevitable. That the street car approached Twenty-second street at a speed of between nine and ten miles an hour; that the hose wagon was twenty-five or thirty feet north of Olive street when the motorman discovered it. That the front end of the car was then about forty feet west of Twenty-second street. That the motorman reversed the power on the car; the reverse action commenced and continued, but the tracks were muddy and slippery and the car slid some seventy-five feet, struck the hose wagon and slid twenty feet farther; that the vestibule in which the motorman stood was enclosed in glass and he could not hear the fire gong above the noise and ringing of the bell of the street car; that it was a dark day with flurries of snow in the air. That the motorman did not see the man waving to him.

Judgment reversed and cause remanded.

Glendy B. Arnold for appellant; Boyle & Priest of counsel.

(1) Deceased was guilty of contributory negligence as a matter of law in attempting to cross the Olive street tracks at a rate of speed which rendered it impossible for him to avoid a collision with the car. There being no last chance doctrine in the case, the demurrer should have been given. Dey v. United Rys. Co., 120 S.W. 134; Roberts v. Railroad, 166 Mo. 370; Hudson v. Railroad, 101 Mo. 13; Ries v. Transit Co., 179 Mo. 1. (2) The fact that deceased was a fireman going to a fire did not relieve him of the duty the law imposes upon all persons crossing railroad tracks. Guiney v. Railroad, 167 Mo. 604; Railroad v. Baker, 28 So. 87. (3) Plaintiff's first, third and fourth instructions are erroneous because of the use of the words "directly contributed." Hof v. Transit Co., 213 Mo. 445; Krehmeyer v. Transit Co., 120 S.W. 78; Schmidt v. Transit Co., 120 S.W. 96; Wilson v. Transit Co., 121 S.W. 1083. (4) Plaintiff's first and second instructions are erroneous because they broaden the issues and authorize a recovery on negligence not charged by the second count of the petition. Allen v. Transit Co., 183 Mo. 432; Jacquin v. Railroad, 57 Mo.App. 331; Chitty v. Railroad, 148 Mo. 75. (5) Plaintiff's third instruction is erroneous. It authorizes a recovery for a violation of the speed ordinance when it was not shown by the evidence that the place of the accident was within the district defined by the ordinance. Breckinridge v. Insurance Co., 87 Mo. 62.

A. R. & Howard Taylor for respondents.

The driver had the right to expect the railroad would obey the law and to regulate his action accordingly. Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo. 190; Eckhard v. Railroad, 190 Mo. 613; Powers v. Railroad, 202 Mo. 280; Gage v. Railroad, 211 Mo. 157; Wilson v. Railroad, 135 S.W. 475.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

CAULFIELD, J. (after stating the facts).

I. Respondents' counsel concede, and we are constrained by the decisions of our Supreme Court to hold, that the judgment must be reversed because the instructions for plaintiffs required the jury to find for the plaintiffs if they found that defendant's...