Hoodenpyle v. United Rys. Co. of St. Louis

• Decision Date: 06 December 1921
• Docket Number: No. 16758.,16758.
• Citation: 236 S.W. 913
• Parties: HOODENPYLE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

236 S.W. 913

HOODENPYLE v. UNITED RYS. CO. OF ST. LOUIS.

No. 16758.

St. Louis Court of Appeals. Missouri.

December 6, 1921.

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

"Not to be officially published."

Action by Arch Hoodenpyle, an infant, by his next friend, William H. Bartley, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff, a young man 19 years of age, while the wagon in which he was riding collided with one of defendant's street cars, at a street crossing in the city of St. Louis. Plaintiff was driving west over Audubon avenue. The accident occurred at the intersection of Audubon avenue with Euclid avenue. Euclid avenue runs north and south. Defendant maintains a double track running north and south over Euclid avenue.

Plaintiff, on direct examination, testified that the collision occurred between 6 and 7 o'clock in the morning, on the 23d of December, 1917, and that at that time it was light and the street lights were being turned off. While driving west on Audubon avenue, and when his horse's head was within about 15 feet of the east rail of the north-bound track, which is the east track, he saw the car coming north, one block away, or a distance of about 180 feet. At that time he says the car was "starting up." He was driving about 5 miles an hour. He continued at this rate without looking any more, until his horse's head was across the east rail of the north-bound track over which the car was being operated. He then looked for the second time, and saw the car 80 or 90 feet away, coming toward him at a rate of speed which he estimates at 20 or 30 miles an hour. He then whipped his horse in an effort to get across the track, but the front end of the car struck the rear end of the milk wagon which he was riding before he had crossed the east track.

On cross-examination he says that he was driving his horse in a trot continuously from a point one block east of Euclid up to the point where the collision occurred. At this point we copy from the record as follows:

"Q. Where did you get onto Audubon? A. At Taylor.

"Q. How far is that east of Euclid? A. One block.

"Q. One block. Now, was your horse trotting all the way from Taylor? A. Well, yes.

"Q. A good stiff trot? A. Well, no; just a medium trot

"Q. A medium trot. Was he trotting whet you passed the building line on Euclid? A. On Euclid?

"Q. Yes. A. Yes; I shoved him up to get across the tracks.

"Q. No; I am talking now — do you understand what mean by the building line — the east building line on Euclid — do you understand what I mean by that? A. Yes.

"Q. Now, as your horse's head passed that east building line, coming west, was he on a trot? A. Yes, sir.

"Q. And I understood you to say that when his head was 15 feet away from the east rail of the north-bound tracks that you looked south and saw a street car? A. Yes.

"Q. And your horse was still on a trot? A. Yes.

"Q. About the same trot? A. Just trotting along slow.

"Q. Was he in about the same kind of trot you came down from Taylor? A. Yes.

"Q. Now, you didn't look again before, your horse got within a reasonable distance of the track, did you? A. When my horse got to the tracks I looked again and saw the can, and it was getting pretty close.

"Q. How far was your horse's head away from the tracks when you looked and saw this car coming? A. It was — when first saw the car?

"Q. No; I have reference to the second time. How far east — A. (interrupting). The horse's head was entering the track.

"Q. Just about to go over the tracks? A. No; the north-bound tracks.

"Q. I mean, just about to go over the east rail of the north-bound track? A. Yes.

"Q. Between the time you looked the first time and that time, you hadn't looked to see where the car was? A. No.

"Q. But when you did look up at that time, you say the car was very near you? A. Well, it was about 80 or 90 feet.

"Q. About 80 or 90 feet; and coming between 20 and 30 miles an hour? A. Yes, sir.

"Q. Your horse was going too fast to stop, so you tried to whip him across, is that it? A. Well, there was no way to turn back. I had to go on across.

"Q. You couldn't stop your horse? A. I could have stopped and got the horse's head on the track.

"Q. You couldn't stop and keep your horse off the track? A. No, sir.

"Q. And you were going too fast to turn to the north? A. I didn't aim to turn north.

"Q. I say, the only way you thought you could get out of the difficulty was by whipping your horse up and going across? A. Going on across.

"Q. And that was occasioned by the fact that horse was trotting when he reached the east rail of the north-bound tracks? A. Yes."

After he whipped his horse, when he got into a position of peril, he says the horse broke from a trot into a gallop. No other witness testified for plaintiff as to what took place at any time prior to the time the street car struck the wagon. One witness testified for plaintiff that the street car, at the time and place in question, had it been going at the rate of 15 miles per hour, could have been stopped within a distance of 45 feet.

The negligence on which the case went to the jury, and upon which plaintiff relied for recovery, was the failure of the defendant to observe the speed ordinance of the city of St. Louis providing that street cars should not run at more than 15 miles an hour at the point where the collision occurred. Plaintiff recovered judgment for $500, and defendant appeals.

Several witnesses testified for the defendant, and the evidence of all these witnesses was to the effect that plaintiff was driving his horse at a trot as he approached the crossing and never halted at any time until he was struck, and that the motorman made every effort to stop the car after it was apparent that plaintiff was going upon the track.

The first question with which we have to deal in this case is whether or not plaintiff should be declared guilty of contributory negligence as a matter of law. It would appear from this testimony, giving to it the most favorable construction reasonable for plaintiff's benefit, that plaintiff, whether going 5 miles an hour or 8 miles an hour, saw this street car 180 feet away when his horse's head was 15 feet from the track. At that time he could have stopped his horse and averted the injury. But plaintiff says that the car was just starting at the next corner south of him, one block away. Traveling at the rate of speed the horse was traveling, it was only a question of a very few seconds until he could cross over the 15 feet of space and across the track. As stated, the street car had just started one block, or 180 feet, away. When he looked again he had covered the distance of 15 feet, and the street car had covered a distance of 80 or 90 feet, and had increased its speed to 20 or 30 miles an hour, if we consider his testimony; and the jury had the right to believe or disbelieve his statements. We do not think it could be said that plaintiff, under the circumstances, must anticipate that the speed of the car is likely to be increased to 30 miles an hour before it reaches the next crossing — one block away. If plaintiff had observed the speed of the car at the time he was 15 feet from the track, and had at that time noted that it was traveling at 20 or 30 miles an hour, or if he had not looked at all until he had driven onto the track, we would be confronted with an entirely different situation.

In Costello v. United Railways Co., 213

S. W. 179, a case relied upon by defendant, this court held plaintiff guilty of contributory...