Harting v. East St. Louis Ry. Co.

• Decision Date: 07 May 1935
• Docket Number: No. 22974.,22974.
• Citation: 81 S.W.2d 973
• Parties: HARTING v. EAST ST. LOUIS RY. CO.
• Court: Missouri Court of Appeals

81 S.W.2d 973

HARTING v. EAST ST. LOUIS RY. CO.

No. 22974.

St. Louis Court of Appeals. Missouri.

May 7, 1935.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be published in State Reports."

Action by William Harting against the East St. Louis Railway Company. From a judgment for the plaintiff, the defendant appeals.

Affirmed.

Lashly, Lashly & Miller, of St. Louis, for appellant.

N. Murry Edwards and Robert A. Harris, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for personal injuries sustained by plaintiff, and for damage to his automobile, resulting from a collision between his automobile and defendant's street car. The collision occurred in East St. Louis at the intersection of Sixth street and State street. Sixth street runs north and south. State street runs east and west. Defendant's railway tracks run east and west on State street. The west-bound cars run on the north track, and the east-bound cars run on the south track. Sixth street north of State street is 36 feet wide from curb to curb. The distance from the building line to the curb on the west side of Sixth street is 12 feet. The distance from the building line to the curb on the east side of Sixth street is 12 feet. The width of State street from curb to curb is 56 feet. The distance from the building line to the curb on the north side of State street is 12 feet. The distance from the building line to the curb on the south side of State street is 12 feet. The distance from the curb on the north side of State street to the north rail of the west-bound street car track is 21 feet. The distance from the curb on the south side of State street to the south rail of the east-bound street car track is 20 feet. The distance from the center of the west-bound track to the center of the east-bound track is 10 feet. The distance from the north rail of the west-bound track to the south rail of the east-bound track is 15 feet. The distance from the building line on the north side of State street to the building line on the south side of State street is 80 feet. At the time of the collision, plaintiff's automobile was running south on Sixth street, and defendant's street car was running east on State street. The street car collided with the right rear wheel and fender of the automobile, whereby plaintiff sustained the injuries to his person, and damage to his automobile, for which he sues.

The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff for $6,833.33, and defendant appeals.

Defendant assigns error here upon the refusal of its instruction in the nature of a demurrer to the evidence. It bases this assignment on the ground that the evidence shows plaintiff was guilty of contributory negligence as a matter of law in driving his automobile in front of the approaching street car.

Counsel agree that the humanitarian rule is not recognized in Illinois, so that if plaintiff was guilty of contributory negligence as a matter of law, he cannot recover.

The evidence shows that the accident happened at about 11 o'clock on Sunday morning on January 11, 1931. It had rained early that morning, but was clear at the time of the accident, and the streets and street car rails were dry. Plaintiff was driving a Chevrolet coupé. His wife was riding in the car with him.

Plaintiff testified that when he came to the north side of State street at the intersection of Sixth street he stopped his automobile as he looked west and saw defendant's east-bound street car about half a block away; that he then looked east for west-bound traffic, and, seeing none near, started up to drive south across the intersection and over the street car tracks, and while he was driving across the north side of State street he again looked west and saw that defendant's street car had advanced about 100 feet and within about 50 feet of the west curb of Sixth street, running 15 or 20 miles per hour, and was slowing down as a man walked into the street at the southwest corner of Sixth and State streets at the place where east-bound street cars regularly stopped to take on and discharge passengers; that he had traveled over this street before, and was acquainted with the intersection, and knew that the place where the man walked into the street was a regular stopping place for taking on and discharging passengers, and that with the street car slowing down and a man at the stopping place he thought the street car was going to stop and take on the passenger, and he continued to drive on south across the street car tracks at a speed of about 10 or 15 miles per hour; that as he was crossing from the west-bound street car track into the east-bound track he observed that the street car, then about 20 feet away, appeared to be increasing its speed, at which time his automobile was so close to the east-bound track that he could not stop without stopping on the track, so he swung or swerved his automobile to the east and increased its speed in an attempt to get across the track and thus avoid being struck by the street car; that the street car came on and struck the right rear fender and wheel of his automobile, causing the rear end to be pushed or thrown around to the east and across the street to the south side of the street, where it stopped facing north in the doors of a garage; that going 10 to 12 miles an hour he could stop his automobile in 10 or 12 feet, and going 15 miles an hour in 10 or 15 feet; that when he looked back west again, after looking east for traffic, he saw that the street car had gotten up to within 50 feet of the corner; that at that time he was moving; that he had left the place where he had stopped; that after he stopped on the north side of the intersection, looked east, and looked back, and saw the street car had advanced to within 50 feet of the intersection, he had just started up; that as the nose of his automobile was starting across the north curb line of State street he judged that the street car was 40 or 50 feet from the west curb line of Sixth street; that when he saw this man step out into the street he thought the street car was going to stop and take on this passenger, and then he looked to the east for traffic; that when he saw the street car slowing down he started up; that he looked to the west for traffic, and when this man stepped out he thought the street car was going to stop; that he did not see the man that stepped out into the street give a signal to the motorman to go on.

Christina Harting, plaintiff's wife, testified that her husband stopped on the north side of State street, and that she saw defendant's street car coming east about half a block west of the intersection; that the street car started to slow down as it approached Sixth street and the man waiting for the street car 60 or 70 feet away, and that she looked to the south as they proceeded to drive south across the intersection; that as they were crossing the street she was looking straight ahead, and when she looked up again the street car was about 20 feet away, and they were just getting from the first track into the other, and she noticed her husband swerving the...