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

• Decision Date: 01 December 1919
• Docket Number: No. 19081.,19081.
• Parties: GUBERNICK v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

217 S.W. 33

GUBERNICK v. UNITED RYS. CO. OF ST. LOUIS.

No. 19081.

Supreme Court of Missouri, Division No. 1.

December 1, 1919.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by Mendel Gubernick against United Railways Company of St. Louis. From judgment setting aside involuntary nonsuit defendant appeals. Reversed and remanded, with directions.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant.

M. G. Baron and A. J. Stack, both of St. Louis, for respondent.

GRAVES, J.

Action for personal injuries. It is charged that plaintiff's wagon, upon which he was riding, was negligently run into by one of defendant's street cars, and the plaintiff thereby thrown to the ground and injured. The collision is alleged to have occurred at the intersection of Twenty-Second and Wash streets in the city of St. Louis.

The negligence charged to defendant, as stated in the petition is: (1) Failure to give a signal upon approaching said crossing or street intersection; (2) the running of said car by an incompetent motorman; (3) the running of said car over said crossing at a great and dangerous speed; (4) the St. Louis vigilant watch ordinance; (5) running at a rate of speed in excess of 10 miles per hour, in violation of an ordinance, duly specified. Damages were asked in the sum of $10,000.

The answer was: (1) A general denial; and (2) a plea of contributory negligence. Reply was in conventional form. Upon the close of plaintiff's case, the court sustained a demurrer to the plaintiff's evidence, and thereupon an involuntary nonsuit was taken by plaintiff. Motion to set aside such nonsuit was sustained, and defendant has appealed. For its solution the case turns upon the evidence introduced by plaintiff. If such evidence sustains one or more of the grounds of negligence the judgment should stand (absent contributory negligence), but, if not, it should be reversed. Respondent has not favored us with a brief.

I. Plaintiff says that before he entered Wash street he looked and saw the car which struck him. It was then at Twenty-Third street. Defendant had a double-track street railway on Wash street, which street runs east and west. Plaintiff was driving south on the right-hand side of Twenty-Second street, some 2 or 3 feet from the curb. This would place him on the west side of Twenty-Second street. The distance from the east side of Twenty-Third street to the west side of Twenty-Second street is given, by a witness who measured it, at 400 feet. The street car was 48 feet long, and, if in Twenty-Third street at the time, it was about 352 feet from plaintiff when he first looked and saw it. Plaintiff and another person were in a light, unloaded wagon, and the plaintiff says he was driving at rate "of 5 miles per hour, and could have stopped his wagon within 3 feet. Both plaintiff and his companion said that they did not again look for the car until the horse had crossed the south tracks of the railway, and the wagon was then on those tracks. He says that he then whipped up and tried to get across. He further says that the car was within 60 feet of him then. It is shown that the car was going 8 miles per hour. One witness says, "going pretty fast," but she does not further fix the speed. The only substantial opinion as to the speed was 8 miles per hour as given by the motorman of defendant, who was running the car at the time. It was shown that such a car, running at that speed on those tracks, might have been stopped in 25 feet,

It was also shown that from the place where the horse's head was, when plaintiff first looked and saw the on-coming car, to north rail of the east bound track was 33 feet. To the south rail would be 5 feet 5 inches more. Plaintiff's rig, including the horse, was estimated at 20 feet. That is to say from nose of the horse to the rear of the wagon was 20 feet. On these shown facts, the negligence of the defendant and the contributory negligence of plaintiff must be measured.

(a) The alleged failure to warn by ringing bell or sounding the gong drops out of the case, because the plaintiff says he saw the oncoming car, although he could not tell its speed at the time. The absence of warning cannot avail him, because he saw the car and knew that it was coming. Murray v. Transit Co., 176 Mo. loc. cit. 189, 75 S. W. 611; Hutchinson v. Railroad, 195 Mo. loc. cit. 549, 93 S. W. 931; Peterson v. Railways Co., 270 Mo. 67, 192 S. W. loc. cit. 940.

(b) No circumstances are shown which would make eight miles an hour negligent speed at this point, so that the common-law allegation of negligence drops out of the case. No common-law negligence was shown under the sparse facts of the case.

(c) The speed of the car was shown to be within the limit fixed by the speed ordinance relied upon, and this negligence of the defendant drops out of the case.

(d) Nor are there facts in evidence which would convict the defendant of negligence in having in its employ an incompetent motorman. The violation of the vigilant watch ordinance is all that is left in the case under this process of elimination. This question we take next.

II. As stated, this case is submitted here...