Holden v. Missouri R. Co.

• Decision Date: 17 November 1903
• Citation: Holden v. Missouri R. Co., 76 S.W. 973, 177 Mo. 456 (Mo. 1903)
• Parties: HOLDEN v. MISSOURI R. CO.
• Court: Missouri Supreme Court

76 S.W. 973

177 Mo. 456

HOLDEN v.MISSOURI R. CO.

Supreme Court of Missouri, Division No. 2.

November 17, 1903.

STREET RAILROADS—COLLISION — CONTRIBUTORY NEGLIGENCE — STOPPING VEHICLE — SPEED—ORDINANCES—INSTRUCTIONS.

1. A person seated by the driver of a wagon approaching a street railway crossing at a careless speed cannot rely implicitly on the care of the driver, and, if he makes no effort to have the speed diminished and his action contributes to a collision with a street car, he cannot recover for his injuries.

2. In an action for injuries resulting from collision with a street car, an instruction relating to plaintiff's duty if the driver was approaching the street, on which cars were passing, at a careless rate of speed, should be so stated as to remove any doubt whether "careless rate of speed" referred to the driver or the cars.

3. Where the motorman on an approaching street car observed that plaintiff did not heed his signals nor give any attention to his car, it was erroneous to instruct that he had the right to assume the vehicle would be stopped when it came to the track, and could proceed at a lawful speed, and was not bound to attempt to stop the car until the vehicle was about to be placed in peril.

4. In an action for injuries resulting from collision with a street car at a crowded crossing, an instruction precluding recovery unless the defendant negligently ran its car at the time and place of the accident at a speed greater than 10 miles per hour, allowed by ordinance, is erroneous, as an ordinance regulating the speed of street cars cannot be construed as authorizing the operation of cars at a public crossing at any particular speed, regardless of conditions at the time of the crossing.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Action by William Holden against the Missouri Railroad Company.From an order granting plaintiff's motion for a new trial, defendant appeals.Affirmed.

Boyle, Priest & Lehmann and Lon O. Hocker, for appellant.Richard A. Jones, for respondent.

FOX, J.

In this action the plaintiff sues to recover damages on account of injuries alleged to have been sustained on the 4th day of December, 1897, through a collision between defendant's car and a wagon in which he was riding.The action was originally instituted against both the Missouri Railroad Company and the Forest Park, Laclede & Fourth Street Railway Company, but before trial a dismissal was entered as to the Forest Park, Laclede & Fourth Street Railway Company, and the action continued against the Missouri Railroad Company alone.The Missouri Railroad Company, at the time in question, operated the railway and cars of the Forest Park, Laclede &amp Fourth Street Railway Company on Thirteenth street, at its intersection with Pine street, in the city of St. Louis, Mo. Thirteenth street extends north and south, and Pine street east and west.There was only one tract in Thirteenth street, which was used by north-bound cars.The plaintiff was an employé of the Wainwright Brewery.At the time of the accident, plaintiff and a man named Harry Jones, also an employé of the Wainwright Brewery, were driving a wagon, belonging to said brewery, east on Pine street.

The petition of plaintiff declares: "That on or about the 4th day of December, 1897, plaintiff was being driven east on Pine street in said city, and, while the wagon in which he was riding was crossing Thirteenth street and the tracks of defendant, a car of the defendant's, operated by their servants, came north on Thirteenth street and struck the wagon in which plaintiff was riding, and threw the plaintiff out upon the street, and severely and seriously injured him.That Pine street, at the point where it crosses said Thirteenth street, is, and was at the time of the happening of the events herein before and hereinafter narrated, a public thoroughfare of said city of St. Louis, on which large numbers of vehicles and persons are almost constantly passing and crossing said Thirteenth street and the tracks of defendants, and it was the duty of the defendants and their servants in crossing the said street to use care to run their cars at such rate of speed as would permit the person in charge thereof to have them constantly under control, so that he could very quickly stop them to avoid injury to vehicles and persons at said crossing, and to keep a lookout for vehicles and persons that might be approaching the track upon which said cars are running, and to ring the bell of said cars and warn drivers of such vehicles and other persons of the approach of said cars to said crossings.That the defendants constructed and maintained said track and run their cars thereon under and by virtue of authority granted and restrictions and limitations prescribed by the city of St. Louis, among such restrictions being the provisions of OrdinanceNo. 17,072 of said city, approved March 4, 1893, entitled, `An ordinance authorizing Forest Park, Laclede & Fourth Street Railway Company to construct a railroad over, along and across certain streets in the city of St. Louis and in Forest Park, and to operate the same by electric power,' by the terms of which ordinance defendants are expressly restricted from running their cars along said Thirteenth street, or on any other part of said line, at a rate of speed in excess of ten miles an hour.That defendants, in the running of their cars on said Thirteenth street, are also governed by and amenable to division 4 of section 1275 of article 6 of Revised Ordinances of the City of St. Louis(1892), being in words following, to wit: `Fourth.The conductor, motorman, gripman, driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible.'"Plaintiff, by leave of court, amended petition to show acceptance by defendant of terms of ordinance of city of St. Louis, subdivision 4, section 1275, Revised Ordinances 1892, requiring person in charge of car to keep a vigilant watch for all vehicles and persons on foot, either on the track or moving towards it, and to stop, at the first appearance of danger to such persons or vehicles, in the shortest time and space possible.The petition alleges a breach of the duties aforesaid, and the consequent injury to plaintiff.Defendant's answer is, first, a general denial, and, second, a plea of negligence on the part of the plaintiff and of one Harry Jones, who was driving the wagon in which plaintiff was riding.

The evidence on the part of the plaintiff tended to show that the crossing at Pine and Thirteenth streets, where the injury occurred, was a busy one; that plaintiff and Harry Jones were driving east on Pine street in a one-horse stake wagon; that the horse was going downgrade at a trot, about five to seven miles an hour; that when the horse was within four or five feet of the track they looked south and saw a car coming rapidly, about 25 feet away; the driver turned the horse diagonally across the street towards the north, and after reaching the north crossing of Pine street, while one wheel of the wagon was on the car track, the car, which had not yet stopped, hit the rear of the wagon with such force as to precipitate both plaintiff and the driver onto the granite pavement of the street, the plaintiff striking on his head, cutting a gash about six inches long.The evidence of the plaintiff also tended to show that the car was approaching at the rate of about 15 miles an hour, and that the gong was not sounded.

The evidence of the defendant tended to show that the plaintiff and Harry Jones were driving the wagon east on Pine street at a rapid rate of speed; that the bell was sounded violently; that the car was going from four to seven miles an hour; that the car was stopped within 25 feet after the first application of the brakes, and that just as the car stopped the wagon struck the front step of the car and splintered it, throwing the two men from the seat of the wagon.Evidence was also introduced tending to show that a party standing 38 feet west of the west rail of the car track could see a distance in Thirteenth street of 72 feet.

No direct evidence was introduced by plaintiff tending to show that the motorman failed to stop the car within the shortest time and space possible, or within what distance the car, such as the one involved, under the conditions and surroundings existing at the time, could be stopped.

Under the instructions of the court the jury found a verdict for the defendant.Within four days after the rendering of said verdict, the plaintiff filed his motion for a new trial, setting up 12 grounds, which said motion the court sustained upon the ground that the court gave to the jury erroneous instructions, and from which order granting a new trial the defendant has appealed to this court.

The instructions given on the part of the defendant are as follows:

"(1)The court instructs the jury that although the plaintiff may not have been the driver of the wagon mentioned in the testimony, nevertheless plaintiff, situated as he was, had no right to rely implicitly upon the care and prudence of the driver on the seat beside him for his own safety, but it was his duty, if said driver was approaching said 13th street, on which cars were passing, at a careless rate of speed, to attempt to have him check his speed to a safe rate, and if the jury find that under the circumstances said wagon was approaching defendant's tracks at a careless rate of speed, and that plaintiff, situated as he was, made no effort to have said speed diminished, and that such action of the plaintiff contributed directly to said collision and his injuries, then he cannot recover, and your verdict must be for defendant.

"(2) If the jury believe...