Hornstein v. United Rys. Co.

• Decision Date: 16 December 1902
• Citation: 97 Mo. App. 271,70 S.W. 1105
• Parties: HORNSTEIN v. UNITED RYS. CO. OF ST. LOUIS et al.
• Court: Missouri Court of Appeals

70 S.W. 1105

97 Mo. App. 271

HORNSTEIN v. UNITED RYS. CO. OF ST. LOUIS et al.

Court of Appeals at St. Louis, Missouri.

December 16, 1902.

STREET RAILROADS — NEGLIGENCE — ALIGHTING PASSENGER — INJURY BY APPROACHING CAR — EVIDENCE — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

1. Where plaintiff alighted from a street car, and, just as he passed around behind it, was struck by another car going in the opposite direction on the next track, negligence of the street car company could not be inferred from the mere happening of the injury.

2. Failure of a motorman to ring the gong as his car approaches another car on the next track going in the opposite direction, and stopping to allow passengers to alight, was negligence.

3. In an action against a street car company for injuries to a passenger, who, immediately after alighting and starting to cross the street behind the car, was struck by another car going in the opposite direction, evidence held to justify submission to the jury of the issue as to whether or not the motorman of the latter car rang the gong when approaching.

4. In an action against a street car company for injuries to a passenger, who, immediately after alighting and starting to cross the street behind the car, was struck by another car going in the opposite direction, evidence held to require submission to the jury of the issue of plaintiff's contributory negligence.

5. In an action against a street railway company, where there was evidence of contributory negligence sufficient to take that question to the jury, an instruction that if the injury was caused by the concurring negligence of plaintiff and defendants' agents, and the negligence of neither, without the concurrence of the negligence of the other, would have caused said injury, plaintiff is not entitled to recover, was proper.

Bland, P. J., dissenting in part.

Appeal from St. Louis circuit court; Seldon P. Spencer, Judge.

Action by Charles L. Hornstein against the United Railways Company of St. Louis and others. From a judgment for plaintiff, defendants appeal. Reversed.

The suit is for the recovery of damages for personal injuries received by plaintiff on June 6, 1901, by being struck by one of the defendants' cars moving north on Vandeventer avenue, in the city of St. Louis. The allegations of negligence are "(1) that the conductor of the south-bound car carelessly and negligently failed to give the plaintiff, as he was alighting from said car and about to cross the eastern track, any warning of the fact that the north-bound car was approaching; (2) the 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 and Vandeventer avenues; (3) that the motorman of said north-bound car negligently and carelessly failed to ring his gong or give any warning whatsoever of the approach of said north-bound car; and (4) that the motorman of said northbound car negligently and carelessly failed to check the speed of his car, or to have said car under control, or keep a watch for persons approaching said eastern track." The answer is — First, a general denial; second, the following plea of contributory negligence, to wit: "Further answering, the defendants say that whatever injuries the plaintiff sustained were caused by his own carelessness and negligence in stepping upon defendants' track in front of said approaching car, when by looking he might have seen, or by listening he might have heard, the same, and avoided said accident." The plea of contributory negligence was denied by a reply.

The evidence shows that Vandeventer avenue runs north and south, and crosses Page avenue running east and west. In Vandeventer avenue are double railway tracks, over which defendant operates street cars by electric power. Cars going south move on the west track, and those going north on the east track. Plaintiff had resided in the immediate neighborhood of the crossing of Vandeventer over Page avenue for five or six months prior to his injury, and had during all that time frequently traveled on defendants' cars on Vandeventer, and was familiar with the surroundings, and knew as a fact that the cars going north and south passed each other frequently at the crossing of Vandeventer and Page avenues. He is a man 60 years of age, but his hearing is unimpaired, and his eye-sight normal for a man of his age. If he is to be judged by his evidence, his English is bad, and his intelligence below the average. On the day of the accident the plaintiff took passage on defendants' car running south on Vandeventer, intending to get off at Page avenue and to go to his home on Page, east of Vandeventer. When the car reached Page, it stopped, and plaintiff alighted. What then occurred is thus related by the plaintiff: "A. When I got up from the car, I was looking around and listening for the second car on the second track, and I looked around and I listened for the car, and I could not see the car, and the bell did not ring. Then I looked back behind me, and there the car started, and I walked over and I looked and listened for the bell, and I did not hear any bell or see any car, and when I got to the car and looked around I saw a car coming, and I turned back with my right shoulder, and the car struck me right on the right shoulder and knocked me down; and I did not know any more after that. That is all I know. I was knocked unconscious. Q. Can you state whether you had gotten in the east track? A. I walked over one track over to the other track. Q. I say, how far had you got when the car struck you? A. Only from the corner of my car, — the end of my car; and then I saw the other car coming, because I was looking for the car and listening for the bell, and I did not see the car or hear the bell, and I was at the corner of my car, and when I saw the car coming I turned back. I wanted to be safe, and I turned around. I fell on the other side of the track, in the west side. Q. Do you know anything about how the car was going, — whether fast or slow? A. No, sir; I did not see the car until I was at the end of the car. I was at the corner, only, and I did not hear the bell ringing there. I was listening for those two points." Plaintiff's evidence, and also that of some of the other witnesses, show that the car from which he alighted began to move south when plaintiff had reached the middle of the west track. Three witnesses, one on the east side of Vandeventer, and two on the rear of the platform of the car from which plaintiff alighted, testified that they saw the other car coming from the north, and that when they saw plaintiff going around the end of the car from which he had alighted, and going on east across the street, they...