Hauck-Hoerr Bakery Co. v. United Rys. Co.

• Decision Date: 22 October 1907
• Citation: 104 S.W. 1137,127 Mo. App. 190
• Parties: HAUCK-HOERR BAKERY CO. v. UNITED RYS. CO.
• Court: Missouri Court of Appeals

104 S.W. 1137

127 Mo. A. 190

HAUCK-HOERR BAKERY CO. v. UNITED RYS. CO.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

1. STREET RAILROADS — COLLISION WITH VEHICLES — QUESTION FOR JURY.

In a suit by a person injured by a street car while driving over a crossing, evidence examined, and held sufficient to take the case to the jury.

2. SAME — CONTRIBUTORY NEGLIGENCE — RELIANCE ON CARE OF MOTORMAN — RATE OF SPEED.

A person about to cross a street car track has a right to presume that an approaching car is moving at a lawful rate of speed, unless he can ascertain to the contrary.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the Hauck-Hoerr Bakery Company against the United Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, for appellant. P. R. Flitcraft and Earl M. Pirkey, for respondent.

GOODE, J.

This action was instituted to recover for damage done to property belonging to the plaintiff in a collision with one of the defendant's trolley cars. The accident happened about half past 4 in the morning of November 27, 1905, and at the intersection of Angelrodt and Eleventh streets in the city of St. Louis. Plaintiff conducts a bakery, from which it delivers bread about the city. On the morning named, one of its drivers was in charge of a wagon and team of mules and engaged in the delivery of bread. He was driving eastward on Angelrodt street toward Eleventh. The former street runs east and west, and the latter north and south, and is narrow — about 20 feet wide. Angelrodt goes down to Eleventh street on a heavy grade, and the grade of Eleventh descends a trifle toward the north — the way the car was headed. Schiller, the driver of the team, was driving along the south side of Angelrodt street toward Eleventh, on which was a car track of defendant. His team was under control, but he did not stop them before going on the track. He swore the pace of the team was a jog trot, and, again, that it was just out of a walk. As the team turned around the southwest corner of the two streets, proceeding southward into Eleventh, it encountered a trolley car and the tongue of the wagon penetrated the front of the dashboard of the car, passed through the front vestibule, crushed one of the seats of the car, and would have struck a passenger had he not moved out of the way. The seats of the car ran longitudinally down each side. At the instant of the collision, the left mule of the team was in the track, and the right mule to the right or west of the track. The left mule was hurled 60 or 70 feet away, as was the wagon. Schiller saved himself by jumping from the wagon. The injuries for which a recovery was asked were done to the wagon, the bread in it, the harness, and the left mule. Plaintiff got judgment for $156.75, and defendant appealed.

The charges of negligence are three: Violation of the vigilant watch ordinance, violation of an ordinance providing that cars should not run at a greater speed than 10 miles an hour, and failure to sound the gong of the car so as to give warning of its approach. We do not find that the assignment of negligence due to failure to sound the gong was carried into the instructions given for the plaintiff, who was allowed to recover only on a finding that the motorman failed to keep vigilant watch for persons on the track or approaching it and to stop his car in the shortest time and space possible on discovering plaintiff was in danger, or else on a finding that the car was run at a speed in excess of 10 miles an hour — that the negligence of the motorman in one or the other of those respects was the cause of the injury. But the failure to ring the gong bore on the issue of whether the driver exercised ordinary care in driving on the car track, and was taken account of in the instructions on contributory negligence granted at defendant's request. The jury was told in instructions...