Hill v. St. Louis Public Service Co.
| Decision Date | 19 October 1933 |
| Docket Number | 30760 |
| Citation | 64 S.W.2d 633 |
| Parties | HILL v. ST. LOUIS PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Foristel, Mudd, Blair & Habenicht, of St. Louis, for appellant.
T. E Francis, B. G. Carpenter, and Allen, Moser & Marsalek, all of St. Louis, for respondent.
STURGIS, Commissioner.
The defendant operates the street car system of St. Louis. Plaintiff brought this suit to recover damages for personal injuries received by him as the result of a collision between defendant's street car traveling north on Broadway street in that city and the automobile in which plaintiff was riding at the time. The collision occurred on the evening of November 27, 1928, just after dark. The automobile was knocked off the track by the impact of the street car, doing considerable damage to it as well as to plaintiff. Broadway is a north and south street, some eighty to ninety feet wide, and defendant maintains double tracks thereon; north-bound cars using the east track, and south-bound cars the west track.
No question arises on the pleadings and it will suffice to say that the petition charges several grounds of negligence on defendant's part, but all were abandoned at the trial except the charge that defendant was operating its street car in question at a high, dangerous, and unreasonable rate of speed such as to endanger the life, limbs, and property of persons using such street, and that defendant violated the vigilant watch ordinance in force in the city requiring persons operating and in charge of street cars to keep a vigilant watch for vehicles and persons on foot on the track or moving toward it and on the first appearance of danger to stop the car in the shortest time and space possible. The defendant by its answer denied its negligence and charged that plaintiff was guilty of contributory negligence in that his automobile was driven upon the street car track immediately in front of and near to the approaching street car, which was or could have been seen in time to have avoided the collision.
When plaintiff's evidence was all in, the court overruled defendant's demurrer to same. The defendant offered no evidence and the case was submitted to the jury on plaintiff's instructions covering the two grounds of negligence mentioned and on instructions for defendant as to plaintiff's contributory negligence. The jury returned a verdict for defendant, and plaintiff has appealed.
The principal error assigned by plaintiff is that the instructions given for defendant as to plaintiff's contributory negligence are erroneous and call for a reversal and remanding of the case. The defendant's position is that such instructions are not erroneous on the facts in evidence, and even if they are, plaintiff is shown by his own evidence to have been guilty of contributory negligence as a matter of law, barring his recovery, and that the court should have directed a verdict for defendant. This latter contention requires a brief statement of the facts shown by plaintiff's evidence, viewed in the light most favorable to him.
Plaintiff lived and was engaged in the grocery business at the northwest corner of the intersection of Fillmore, an east and west street, with Broadway, and the accident occurred a little north of this intersection. Plaintiff had parked his automobile, headed south, in front of his place of business at a point on the west side of Broadway some 45 or 50 feet north of the north line of Fillmore street. On this occasion he desired to go north on Broadway and to do so had to make what is called a U turn, that is, turn east across Broadway and the street car tracks thereon and then turn north on the east side of Broadway. While crossing the street car tracks in making this U turn, plaintiff's automobile was struck by the north-bound street car on the east track. Plaintiff owned the automobile but did not do the driving on this occasion, as he had his son-in-law Coile, to whose home he was going for evening dinner, do the driving, while plaintiff, with his son, occupied the back seat. In this connection we may say that plaintiff in his reply brief says: This is in accordance with the ruling of this court in Smith v. Wells, 326 Mo. 525, 547, 31 S.W.2d 1014, 1025, and cases there cited. Therefore, in determining plaintiff's contributory negligence in going onto this street car track in front of a plainly visible street car, it makes no particular difference whether the particular acts of negligence were the personal acts of plaintiff or those of his agent, the driver. As said in the Smith Case:
We will, therefore, treat the acts of Coile, the driver of the automobile, as the acts of plaintiff. The evidence of plaintiff and the driver, Coile, is that when both entered the automobile it was standing at the curb on the west side of Broadway, headed south, and both knew of and intended to make a U turn so as to head north on the east side of Broadway, and that in doing so they must cross the street car tracks near the center of the street. Plaintiff testified that before he got in the automobile he looked south and saw the coming street car, then about 275 feet or a block away. Coile, the driver, testified that when he got in the parked automobile he looked and saw the street car at what he estimated to be some 400 feet away. Both parties agreed that the automobile then moved south along the west curb of Broadway at least 40 feet till it was right at the north line of Fillmore, the cross street, and was then turned east to cross Broadway and make the turn north. Plaintiff says he remembers going south on the west side of Broadway and then making the turn east, but never looked or saw the street car again. He woke up at the hospital. Coile says that he kept looking at the coming street car till he started to turn east across Broadway, and that the street car was then 200 to 250 feet away. He also distinctly testified that he was observing the street car, and that while his automobile was going the 40 feet south to the turning point east the street car had moved north from where he first saw it, about 400 feet away to a point about 200 feet away. Both parties agree that while it was getting dark, the street car was lighted up, there were no obstructions in the way, and it was plainly visible. Coile, the driver, says that from the turning point on he gave the street car no further attention and never saw it again till the front wheels of the automobile were almost on the west rail of the east track on which he knew the street car was coming, that he had neither increased nor decreased the speed of the automobile, which he estimated at 8 to 10 miles per hour, and that he then tried to accelerate the speed, but the street car struck the rear end of his automobile, causing his injury. He testified that when he saw the street car as his automobile was about on the west rail of the east track, the street car was some 35 or 40 feet from him. Coile further testified that he could at any time have stopped his automobile in 6 to 8 feet, and, judging from the respective distances traveled by the automobile and the street car, the street car was traveling five times as fast as the automobile. Other evidence was to the effect that the street car was going 30 to 35 miles per hour. Coile, the driver, admitted that had he looked and seen the street car when he was 10 feet from the track, he could have stopped in time to have avoided the collision. There was nothing to distract his attention from the coming car. His only excuse for not giving any attention to the coming street car from the time he started to turn east toward the street car track till his front wheels were at the first rail of the track and too late to stop, although he had seen and knew the street car was coming on the east track, was that he thought he had time to cross the track ahead of the street car. He formed this conclusion while he was yet at the west curb. From the time this automobile began to turn east the driver knew he had to go more than half the width of this wide street before reaching the east track on which the street car was coming and that he would then have to go more than the length of his automobile to clear that track, and yet on entering on that track did not glance to his right to see where the street car was till too late to avoid the collision. While plaintiff's case proceeded on the theory that defendant's motorman did not comply with the vigilant watch ordinance and did not even check the speed of the street car, yet the evidence is that such street car came to a stop in less than its length after the collision. And we note that plaintiff did not seek to submit his case on the humanitarian rule, which would have eliminated plaintiff's negligence, to the effect that defendant could and should have seen plaintiff going into peril in time to have stopped or slowed down the street car and avoided the collision. Evidently this was because the...
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