Green v. United Rys. Co. of St. Louis

• Decision Date: 02 April 1912
• Citation: 145 S.W. 861
• Parties: GREEN et al. v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

145 S.W. 861

GREEN et al. v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

April 2, 1912.

1. STREET RAILROADS (§ 118)—COLLISIONS— INSTRUCTIONS.

Where, in an action for the death of a hose wagon driver of a city fire department in a collision with a street car, the negligence relied on was a violation of city ordinances regulating the operation of street cars, and the street railway company relied on contributory negligence of decedent, an instruction requiring the jury to find for plaintiffs, if the negligent acts complained of "directly contributed to cause" the injuries resulting in decedent's death, was erroneous for failing to require a finding that such acts caused the injuries.

2. TRIAL (§ 251)—INSTRUCTIONS—ISSUES.

The instructions, in an action for negligent death, must limit the jury, in their consideration of defendant's negligence, to the specific acts and omissions relied on as negligence.

3. STREET RAILROADS (§ 99)—COLLISIONS— CARE REQUIRED OF TRAVELERS.

An ordinary traveler must approach a street railroad track cautiously with his vehicle under control, looking and listening, ready to stop and give way to street cars, and must exercise reasonable prudence to avoid injury according to the facts; but a driver of a hose wagon of a city fire department need not proceed with the deliberation of an ordinary traveler, and need only drive with the care which a prudent person would exercise in view of the circumstances, such as municipal ordinances giving fire department wagons the right of way, and the constant signaling of the approach of such wagons.

4. STREET RAILROADS (§ 117)—COLLISIONS— CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

Whether a hose wagon driver of a city fire department, killed in a collision with a street car, was guilty of contributory negligence in driving on the track held, under the evidence, for the jury.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Helen Green and another, by their curatrix, Mary Green, against the United Railways Company of St. Louis. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

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 $5,000, 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 10 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, were 36 feet wide from curb to curb, and 60 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. Plaintiffs' 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 4:30 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 10 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 2½ tons, and was 6 or 7 feet long, and had a wheel gauge of 4 feet 10 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 loudly, 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 east-bound 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...