Hornstein v. United Railways Company

• Decision Date: 30 March 1906
• Citation: 92 S.W. 884,195 Mo. 440
• Parties: HORNSTEIN v. UNITED RAILWAYS COMPANY et al., Appellants
• Court: Missouri Supreme Court

92 S.W. 884

195 Mo. 440

HORNSTEIN v. UNITED RAILWAYS COMPANY et al., Appellants

Supreme Court of Missouri, Division One

March 30, 1906

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed.

George W. Easley with Boyle & Priest for appellants.

The trial court erred in submitting the case to the jury. The demurrer to plaintiff's evidence should have been sustained. Plaintiff's conduct was so negligent as to bar his recovery. Myer v. Railrad, 6 Mo.App. 30; Hanselman v. Railroad, 88 Mo.App. 122; Dunn v Railroad, 21 Mo.App. 188. Certainly, where a man of mature years, in the possession of all his senses and faculties, suddenly emerges from behind a car, and crosses the space between the two tracks, and runs into or allows himself to be struck by the side or corner of the car on the other track, without pretense of evidence that he was seen or could have been seen, before he emerged from behind the other car, it presents no case of negligence against the motorman of the car, but does show a clear case of contributory negligence on the part of such man. Weber v. Railroad, 100 Mo. 204; Buzby v. Railroad, 129 Pa. 539; Smith v. Railroad, 29 Ore. 539; Creamer v. Railroad, 126 Mass. 320; Railroad v. Boddy, 8 Am. Neg. Rep. 556; Railroad v. Helms, 1 Am. Neg. Rep. 63; Hornstein v. Railroad, 97 Mo.App. 278. The question has been put at rest in this State by the recent case of Giardina v. Railroad, 185 Mo. 330.

Lee Sale for respondent.

(1) The trial court properly held that plaintiff's conduct was not such as to bar his recovery. (a) Because there was affirmative evidence tending to show that plaintiff listened for the approaching car and that he also looked for it as soon as he was in position to do so. The proof thus showing that plaintiff exercised some care and caution, it was clearly the province of the jury to say whether, in so doing, he measured up to the standard of ordinary care. (b) Because, even if there had been no evidence as to whether plaintiff looked or listened, a presumption that plaintiff was exercising care for his own safety arising out of the instinct of self-preservation, coupled with plaintiff's right to rely upon the defendant's performing its duty to him as a pedestrian at a street crossing and as a discharged passenger, including its duty to comply with its own rule in force at the time as to sounding the gong and slowing up, made the case one for a jury to say whether, under the circumstances, plaintiff was acting with ordinary care. There is no absolute duty to look and listen before crossing a street railway track at a street crossing, but only a duty to exercise one's senses of sight and hearing to the extent that a person of ordinary prudence would have done under the circumstances. Burbridge v. Railroad, 36 Mo.App. 669; Railroad v. Snell, 54 Ohio St. 197; Railroad v. Gentry, Adm. (Ind.), 37 L. R. A. 378; Railroad v. Scott, 58 N.J.L. 682; Railroad v. Goodin, 62 N.J.L. 394; Robbins v. Railroad, 165 Mass. 30; Bass v. Railroad, 100 Va. 1; Ernst v. Railroad, 35 N.Y. 9; Garrity v. Railroad, 112 Mich. 369; Dobert v. Railroad, 91 Hun 28; Smith v. Railroad, 18 Wash. 351; Railroad v. Robinson, 127 Ill. 9; Weber v. Railroad, 100 Mo. 202; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, 89 S.W. 602. (2) There is no rule of law which required plaintiff, after he had alighted from defendants' south-bound car, to stop and wait until the south-bound car had passed out and given him an unobstructed view of the north-bound track. Railroad v. Whitcomb, 66 F. 915.

OPINION

MARSHALL, J.

This is an action for $ 10,000 damages for personal injuries received by the plaintiff, on the 6th of June, 1901, about half past six o'clock p. m., in consequence of a collision with the defendants' street car, at the corner of Vandeventer avenue and Page avenue, in the city of St. Louis. There was a verdict and judgment for the plaintiff for $ 6,000, from which the defendants appealed.

THE ISSUES.

The petition alleges that, at the time of the accident, the defendants' cars were provided with a bell or gong, "which it was customary and usual for said motorman to ring, for the purpose of warning persons of the approach of said car, whenever said motorman had reason to anticipate the sudden appearance of persons upon or near the track, on which the car was running," and were further provided with a brake for stopping the car, or checking the speed thereof; that on the day named, the plaintiff was a passenger on one of defendants' cars, going south on Vandeventer avenue, and that when the car reached the south side of Page avenue, it was stopped for the purpose of permitting passengers to alight from said car; that plaintiff alighted from said car, and was proceeding in the rear thereof, along the south side of Page avenue, going from the west track of defendants' railway to the pavement on the east side of Vandeventer avenue; that as he approached the east track of defendant's railroad, upon said Vandeventer avenue, and was about to cross the same, a north-bound car, in charge of defendant's servants, as aforesaid, carelessly and negligently ran into plaintiff and knocked him down, and injured him in a painful manner; that the injuries were caused "by the carelessness and negligence of defendant's servants in operating its cars in the following respects, to-wit: that immediately prior to the happening of the said injury, and while said south-bound car was discharging its passengers upon the street on the south side of Page avenue, defendants' servants in charge of said car carelessly and negligently failed to give the plaintiff, as he was alighting from said car, and was about to cross defendants' eastwardly track, any warning of the fact that said north-bound car was approaching and was near to the south side of Page avenue; that while said south-bound car was so discharging its passengers as aforesaid, including the plaintiff, said north-bound car was negligently permitted to run at a high and dangerous rate of speed, as it approached and passed the corner of Page avenue; that notwithstanding the fact that his view of the south crossing at Page and Vandeventer avenues was obstructed by defendants' south-bound car, and he had reason to anticipate the sudden appearance of persons desirous of crossing the eastward track of said road, at said point, the motorman of said north-bound car negligently and carelessly failed to ring his gong, or to give any warning whatever of the approach of said north-bound car to Page avenue, and negligently and carelessly failed to check the speed of his said car, or to have said car under control; and that the said motorman negligently failed to keep watch for persons approaching said eastward track, or to stop said car as soon as he could have done after he saw, or by the exercise of ordinary care could have seen, plaintiff in a position of danger. Plaintiff further states that but for the carelessness and negligence of the defendants' servants in operating its said cars, as aforesaid, the injuries herein complained of would never have happened."

The answer is a general denial, coupled with a plea of contributory negligence, in that, the plaintiff stepped upon or near the railway track while the car of the defendants was in close proximity to him, and, in that, the plaintiff failed to look or listen or heed the approach of the car. The reply is a general denial.

The case made is this:

Vandeventer avenue runs north and south. Page avenue runs east and west. The defendants have a double street-car track on Vandeventer avenue. The south-bound cars run on the west track, and the northbound cars run on the east track. The space between the said two tracks is four feet eight inches, according to the plaintiff's statement, or five feet, according to the defendants' statement. The space between the passing cars is ten inches, according to the plaintiff's statement, and one foot according to the defendants' statement. The plaintiff lived on the south side of Page avenue, and east of Vandeventer. He worked down town. On the day of the accident, as was his custom, he took the car to go home, which would take him west to Vandeventer avenue, and thence south to Page avenue. When the car reached the south crossing of Page avenue on Vandeventer avenue, a passenger alighted therefrom before the car stopped, and crossed Vandeventer towards the east. When the car stopped, the plaintiff alighted, and immediately passed around the rear of the south-bound car, for the purpose of crossing Vandeventer avenue towards the east, in order to reach his home.

The testimony for the plaintiff tends to prove that as he passed along the rear of the south-bound car, he listened for the bell, to see if a north-bound car was approaching, and heard no bell, and that no bell was sounded; that his view to the south was obstructed by the south-bound car from which he had alighted, so that he could not see whether a north-bound car was approaching; that as he passed to the east side of the south-bound car, he stooped to look toward the south for a north-bound car, and that, at that time, he was "a little over the west track, one foot over the west track, I guess, with my left foot I went over a little. . . . Q. Had you gotten as far as the north-bound track when you saw the car? A. Yes, sir. Q. You just now told me that you had gotten to the corner of that car. A. Yes, sir. Q. The corner nearest to your house? A. Yes, sir. Q. The corner is between the east track and the west track isn't it? A. Yes, sir. Q. Had you got as far as the east track, the car track that goes north -- had you gotten that far? A. Pretty near it, near that. Q. Then you had not gotten that far; you say you had gotten or had...