Guinney v. Southern Electric R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Brace
• Citation: Guinney v. Southern Electric R. Co., 67 S.W. 296, 167 Mo. 595 (Mo. 1902)
• Decision Date: 12 March 1902
• Parties: GUINNEY v. SOUTHERN ELECTRIC R. CO.

67 S.W. 296

167 Mo. 595

GUINNEY v. SOUTHERN ELECTRIC R. CO.

Supreme Court of Missouri, Division No. 1.

March 12, 1902.

STREET RAILWAYS — CROSSING ACCIDENT — DEATH OF FIREMAN — NEGLIGENCE — INSTRUCTIONS —LOOKING AND LISTENING.

1. In an action against a street railway for the death of plaintiff's decedent, by collision with a car while he was driving a wagon for the fire department, an instruction that it was his duty to exercise "ordinary care," to make use of his faculties on approaching the crossing, and, whether or not defendant's servants gave signals, it was decedent's duty to look and listen before driving on the track, and if he "failed to exercise ordinary care, and failed to look and listen," and thereby contributed to his injury, plaintiff could not recover, was not erroneous, as declaring failure to look or listen negligence under all circumstances, thereby imposing a higher degree of care on decedent than is required of a fireman.

2. Since the instruction did not declare failure alone to look and listen negligence, it was not erroneous for failing to add that only in case, by looking and listening, decedent would have seen and heard the car in time to avoid the injury, failure to do so would preclude recovery.

3. In an action for the death of the driver of a wagon of the fire department which collided with defendant's street car, an instruction that if the motorman had no warning of the approach of the wagon, nor could have known it by vigilant watch before both car and wagon reached the street crossing, and the wagon and car were then going at such speed that it was impossible for the motorman to avoid a collision, the jury should find for defendant, was not open to the objection that it exonerated the motorman from all negligence prior to the time the car reached the intersection of the streets.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by Mary Guinney against the Southern Electric Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Virgil Rule and Jesse A. McDonald, for appellant. Lubke & Muench, for respondent.

BRACE, P. J.

This is an action by the widow of Jeremiah Guinney, deceased, to recover the statutory damages of $5,000 for the death of her husband, which resulted from injuries received by him in a collision between a wagon and team being driven by him and one of the cars of the Southern Electric Railroad Company, at the crossing of Sixth and Gratiot streets in the city of St Louis, which occurred on the 11th of February, 1898. The verdict was for the defendant, and the plaintiff appeals. The cause of action stated in the petition was negligence of the defendant's employés in the management of its car. The answer was a general denial, and a plea of contributory negligence, upon which issue was joined by reply. No question is raised upon the pleadings or the action of the court in the admission or exclusion of evidence. Gratiot street runs east and west, and is about 30 feet wide. Sixth street runs north and south, and upon it is located the defendant's double track. The deceased was an employé of the fire department of said city, and engaged in driving one of the fuel wagons of the department,—a two-horse wagon, about 5 by 12 feet in size, equipped with a gong, and loaded with about 25 bushels of coal. Prior to the collision, in response to a fire alarm, the fire engine and hose reel belonging to the same service with this fuel wagon, going west on Gratiot street, passed over this crossing, and out of sight and hearing therefrom. About 10 or 15 minutes later the deceased, driving the fuel wagon and following after in the same direction, approached this crossing at a rapid rate of speed; one of his horses galloping, the other trotting. At the same time defendant's car, going north on Sixth street, approached the crossing from the south. On the east side of Sixth street there was a board fence, about 12 feet high, extending from the south side of Gratiot street, south along the east side of Sixth street, about 100 feet, which prevented the motorman and those on the car, while traveling that distance toward the crossing, from seeing the approaching wagon and team. But the deceased, from his position on the wagon while traveling the same distance on Gratiot street, could see the trolley and the top of the car on Sixth street approaching the crossing. The wagon and car each proceeded on its way until they collided, somewhere between the center and north line of Gratiot street. By the contract the front wheels of the front truck of the car were thrown from the track and the fender bent, the left hind wheel and tongue of the wagon broken, and the deceased thrown from his seat to the ground, receiving the injuries from which he soon thereafter, on the same day, died. He never checked the speed of his team from the time he came in view of the trolley and the top of the car, but when within a few feet of the car seems to have deflected his team from its course to the right; the horses jumping over the fender and breaking the tongue, the front wheel of the wagon catching in the drawhead, and a hind wheel behind the fender. The evidence of other facts in the case is conflicting. That of the plaintiff tended to prove that the gong on the wagon was being sounded continuously from Broadway, the next street east, until the wagon reached the crossing; that the car was going at a rapid rate of speed, and was not checked until the collision took place; that the bell on the car was not heard by persons in the neighborhood; and that the car struck the wagon. That of the defendant tended to prove that the gong on the wagon was not heard by the motorman, the conductor, or passengers on the train; that the power was thrown off the car about 200 feet south of the crossing, and thereafter the bell was continuously rung,...