Hawkins v. Wells

• Decision Date: 12 July 1927
• Docket Number: No. 19845.,19845.
• Citation: 297 S.W. 193
• Parties: HAWKINS v. WELLS.
• Court: Missouri Court of Appeals

297 S.W. 193

HAWKINS v. WELLS.

No. 19845.

St. Louis Court of Appeals, Missouri.

July 12, 1927.

Rehearing Denied July 19, 1927.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Sylvester Hawkins against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles W. Bates, T. E. Francis, and John F. Evans, all of St. Louis, for appellant.

Harry S. Gleick, of St. Louis, for respondent.

BECKER, J.

Plaintiff, In an action for damages for personal injuries, had judgment against defendant for $2,500. Defendant in due course appeals.

Plaintiff, a pedestrian, whilst attempting to pass in front of one of the defendant's street cars at the usual stopping place for its eastbound cars on Manchester avenue where McCausland avenue enters same from the north, was struck by the car and injured.

Plaintiff's petition set out three assignments of negligence: The humanitarian doctrine; failure to give any signal or warning of the approach of the street car; and failure to keep a careful watch for persons on the street.

The answer was a general denial and a plea of contributory negligence, in that plaintiff attempted to cross in front of and in close and dangerous proximity to the approaching street car when he saw or heard, or by the exercise of ordinary care could have seen and heard the approaching street car in time to have prevented the collision.

Plaintiff was permitted to go to the jury on each of the three assignments pleaded in his petition.

It is seriously urged by defendant that its demurrer, offered at the close of the case, should have been given, and several reasons are advanced in support of this contention. Since one of the reasons assigned is that the plaintiff was guilty of contributory negligence as a matter of law, we are setting out the case as made.

Plaintiff himself testified that on March 17, 1924, at about 7:30 in the evening, in the city of St. Louis, he started from his home on the west side of McCausland avenue and walked south to its intersection with Manchester avenue, intending to board an east-bound Manchester car of the defendant to go to the Union Station, where he, as Pullman conductor, was due to take out a train at 9:32. He was late and anxious to board an east-bound car which he saw approaching as he reached Manchester avenue. There is a stopping place for the taking on of passengers on the south side of Manchester avenue almost opposite the west side of McCausland avenue, and, as, plaintiff got to the point in the intersection of McCausland avenue with Manchester avenue, he saw an east-bound car approaching a half block distant, about 150 feet, and noticed that a man was standing on the south side of Manchester avenue at the usual stopping place for the taking on of passengers. Plaintiff proceeded across the street and had gotten to a point midway between the east-bound and west-bound street car tracks of the defendant company when he looked west again and saw the east-bound car a car length away and he hurried to get across. He testified: "I tried to step across the tracks, and I was about one step short, and the car hit me almost right on the edge of the track." On being asked whether the street car stopped for the man he saw standing at the usual stopping place, he answered: "It did not." He further testified that he did not hear any bell or gong sounded by the street car before he was struck.

As to the speed of the car, he testified that when he first saw it one-half block away it was "coming pretty fast," and he stated that his idea of "pretty fast" for a street car might be 15 or 20 miles per hour; and the next time he saw the car, when he was between the east-bound and west-bound rails, and the car about 35 or 40 feet distant, he said he could not tell how fast the car was going, but that he thought it was going to stop "right there." When on cross-examination he was asked to give his best judgment as to the distance the car was away from him when he was within a foot of the eastbound rail and hurrying to get across the street, he answered, "Well, I though the car was at least 5 or 6 feet from me and stopping." He further testified that he could not tell how fast the car was going at that time.

A Mrs. Friend, a witness for plaintiff, testified that she was a passenger on the street car in question and sat on the fourth seat from the front on the north side of the car; that, as the car approached McCausland avenue, she saw an automobile coming south on McCausland avenue, which turned east on Manchester avenue; "about that time I saw Mr. Hawkins on the track just about the same time he was hit." She testified further that she did not hear any gong or warning given by the motorman until Mr. Hawkins was actually in front of the street car, and that just about the moment Mr. Hawkins was struck by the car she heard some one on the front platform call out "Look out, mister."

Plaintiff adduced a witness who qualified as an expert, and testified that a street car of the type and kind in question, going at 15 miles an hour on wet rails, could be stopped within 45 to 48 feet, and on a dry rail within 40 to 43 feet; and at 20 miles per hour on a wet rail the car could be stopped within 60 to 62 feet, and on a dry rail within 55 to 58 feet.

For the defendant, Anna Crafton testified that she was standing at the usual stopping place on the south side of Manchester avenue at its intersection with McCausland avenue on the evening in question; that she was standing there waiting for the car, and "I got part of the way in the street flagging the car;" that she was the only person standing there waiting for the car; that she saw plaintiff as he got to the corner and started walking straight across Manchester avenue, when an automobile came along Manchester avenue, going west; that plaintiff "just got out of the way of that machine, and I suppose he was hurrying, and he just right into the car; the car would have been stopped probably in a minute; I just guess it was slowing down; if he had just been a minute sooner, the car would have been stopped." She testified further that the car stopped for her to get on, and that she did in fact board the car. According to this witness, she heard the motorman ring his gong as he approached the stopping place; that the right-hand side of the front fender of the street car struck plaintiff, knocking him over to the curbing. According to her testimony, the car had almost stopped at the time it struck plaintiff.

The motorman in charge of the car was not available at the trial, and his affidavit was read to the effect that, as the car approached McCausland avenue, he saw plaintiff running across the street in an apparent effort to run in front of the car; that he immediately applied his brakes, rang his bell, and shouted to him, but that the plaintiff did not stop or slow up, but ran immediately in front of the car before the same could be stopped, and was struck by the fender and front of the car, and fell to the right side of the tracks, and that the tracks were slippery at the time.

The defendant read in evidence an alleged sworn statement made by the Mrs. Friend who had testified for plaintiff, which bore date of March 19, 1924, and contained a recital that, when the street car approached McCausland avenue, an automobile rushed past on the south side of the street car and turned east into McCausland avenue crossing the car tracks about 10 feet in front of the car; the motorman slowed down the car to let the automobile pass and continued going slow afterwards; that the motorman was ringing his bell hard as the automobile was passing over the tracks; just after the...