Heintz v. St. Louis Transit Co.

• Decision Date: 02 January 1906
• Citation: 92 S.W. 353,115 Mo. App. 667
• Parties: HEINTZ v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

92 S.W. 353

115 Mo. App. 667

HEINTZ v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

January 2, 1906.

Rehearing Denied January 16, 1906.

1. STREET RAILROADS—COLLISIONS WITH VEHICLES—FAILURE OF MOTORMAN TO RING BELL.

Where a driver saw a car approaching before or at the time he turned to cross the track, the failure of the motorman to ring the bell afforded him no right of action for injuries received by being struck by the car.

2. SAME—PROHIBITED RATE OF SPEED.

It is negligence per se to run a street car at a speed prohibited by a city ordinance.

3. SAME — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE.

Where a driver of a vehicle saw a car approaching, and believed he would have time to cross before it would overtake him, and in so doing he was struck by the car and injured, and the injury would not have been caused but for defendant's running the car at a rate of speed prohibited by ordinance, the question of such driver's contributory negligence was for the jury.

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

Action by Jacob Heintz, Jr., against the St. Louis Transit Company. From a judgment granting a new trial, plaintiff appeals. Reversed.

Block, Sulliven & Erd, for appellant. Boyle, Priest & Lehman, for respondent.

BLAND, P. J.

On October 30, 1903, about 5:30 p. m., plaintiff was driving his two horse wagon on the west side of Broadway. in the city of St. Louis. Defendant has a double railroad track in the center of Broadway. Cars traveling north run on the east track, and those traveling south run on the west track. Plaintiff attempted to cross the tracks by driving diagonally to the east side of the street. His horses were traveling in a walk. When plaintiff started across the street he looked south and saw a car about one-half block, or 150 feet away, traveling north. He did not stop or hurry his team, but proceeded to cross the track in a walk. The car overtook him just as the front wheel of his wagon rolled over the east rail of the east track. The wagon was pushed back to the west track, the horses thrown and dragged under the car, and plaintiff was thrown from the wagon to the ground. The wagon and horses were damaged, and plaintiff received injuries. He recovered a verdict for $2,500. At the close of plaintiff's evidence the defendant moved the court for a peremptory instruction to find for it, which the court refused to give. One of the errors assigned in the motion for new trial is the refusal of the court to give this instruction. The court granted a new trial on the sole ground that it was of the opinion that error was committed in refusing defendant's said instruction. Plaintiff appealed from the order granting a new trial.

The negligence alleged was the failure of the motorman to ring the bell as required by ordinance, running the car at a prohibited rate of speed, and violation of the vigilant watch ordinance. In addition to the facts above stated, plaintiff's evidence is that the car was running at a speed of 25 miles per hour; that the motorman did not ring the bell or check the speed of the car, until it was within five or ten feet of the wagon; that it was not dark, and a large electric light hanging near the scene of the accident was lighted. There is no evidence as to the distance in which a car running at a speed of 25 miles per hour could be stopped. The want of such evidence eliminates from the case the application of the humanitarian or last chance doctrine, and leaves for consideration only two acts of negligence alleged and proven: First, the failure of the motorman to ring the bell; second, running the car at a prohibited rate of speed. The first affords plaintiff no right of action or ground of complaint, for the reason he saw the car before, or at the time, he turned to cross the track. To have rung the bell would not have warned him of a danger he did not know of...