Hough v. St. Louis Car Co.

• Decision Date: 30 November 1909
• Citation: 123 S.W. 83
• Parties: HOUGH v. ST. LOUIS CAR CO. et al. Appeal of KOBUSCH AUTOMOBILE CO.
• Court: Missouri Court of Appeals

123 S.W. 83

HOUGH v. ST. LOUIS CAR CO. et al.

Appeal of KOBUSCH AUTOMOBILE CO.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

Rehearing Denied December 14, 1909.

1. MUNICIPAL CORPORATIONS (§ 706) — COLLISIONS—INJURIES TO PEDESTRIANS.

Where, in an action for injuries to a pedestrian struck by an automobile, a motorman testified that he noticed the automobile, that he saw it strike the pedestrian, and that the automobile traveled at the rate of 15 or 20 miles an hour, an instruction submitting the issue of the negligence of the driver of the automobile in running it in excess of 8 miles an hour, in violation of an ordinance fixing the maximum speed at 8 miles an hour, was not objectionable as submitting an issue not supported by the evidence.

2. EVIDENCE (§ 536)—OPINION EVIDENCE— EXPERTS—COMPETENCY OF WITNESS.

A motorman of some 12 years' experience, who was accustomed to notice the speed of vehicles on the streets, was competent to give his opinion as to the speed of an automobile.

3. MUNICIPAL CORPORATIONS (§ 706) — INJURIES TO PEDESTRIANS — CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.

Where, in an action for injuries to a pedestrian struck by an automobile, defendant relied on the defense of contributory negligence, and the pedestrian testified that before starting to cross the street she looked and listened for vehicles and neither saw nor heard anything, and that she did not see the automobile nor hear any whistle, an instruction that it was assumed that the pedestrian and the driver of the automobile saw each other if either or both had an unobstructed view of the street for a sufficient distance, etc., was erroneous because stating a presumption against the evidence.

4. NEGLIGENCE (§ 141)—CONTRIBUTORY NEGLIGENCE—LAST CHANCE DOCTRINE—INSTRUCTIONS.

Where plaintiff denies his contributory negligence, and insists that the injury was caused by defendant's negligence, the court may not charge on the last chance doctrine, as that invokes the doctrine that plaintiff confesses his guilt of negligence.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Rebecca Hough against the St. Louis Car Company and others. From a judgment for plaintiff, defendant the Kobusch Automobile Company appeals. Reversed and remanded.

Plaintiff, while crossing a public street in the city of St. Louis, was struck by one of defendant's automobiles, in charge of one of its employés, and thereupon instituted the present action, charging negligence generally, failure to use ordinary care to discover the position of plaintiff at the time of the accident, and that after plaintiff was, or should have been, discovered, failure to stop or change the course of the machine so as to have avoided the accident, running the machine at a high and dangerous rate of speed, failure to give plaintiff warning of the approach of the machine, and violation of the automobile speed ordinance of the city of St. Louis. This ordinance, No. 20,536, prohibits the driving of a machine run by electricity, gasoline, or steam over the streets of the city at a rate of speed exceeding eight miles per hour, or in the parks of the city at a rate of speed exceeding six miles per hour. The answer was a general denial, together with a plea of contributory negligence, in that plaintiff carelessly and negligently and without looking and listening stepped directly in front of the moving machine. There was also a plea of compromise which was abandoned at the trial. The reply was a general denial.

According to the testimony of the plaintiff, who was a lady 63 years old, she was going down town and started from her home to take a street car, intending to take a south-bound street car. It was about noon. She went from her home to Kossuth avenue and down Kossuth avenue to Grand avenue, intending to take a Grand avenue car at the corner of Kossuth and Grand avenues. When she got to the corner of Kossuth and Grand, there was no car in sight, and she stopped a few minutes to talk to a lady friend, whom she met on the corner, until she saw her car coming from Lee avenue on the north. When she first saw the street car it was near Lee avenue, a street which was a block north of Kossuth, whereupon she started over the street (Grand avenue) to be ready for the car when it reached Grand and Kossuth. Before starting to cross the street, she looked and listened to see if any vehicles were crossing the street. Neither saw nor heard anything that would prevent her from crossing over. As she started over, nothing occurred to warn her, and all she had in her mind was that she was safe in crossing and did not see anything to prevent her; started across Grand avenue, and had crossed over both of the street car tracks when the first thing she knew she was hit. She was afterwards told that she was hit by an automobile; but she did not see the automobile at all. She heard no whistle nor horn blown, nor heard any unusual sound at all. Her hearing is perfectly good. She had been thrown on the street and rolled over and over, the automobile had rolled her over and over, and the wheels had run over the left side of her abdomen. She gave further testimony as to the extent of her injuries. Before she was injured she was strong and healthy and hearty and could do her work; was confined to her bed five weeks after the accident before she was able to dress and sit up; and her sufferings in mind and body "were beyond description," as she said. On cross-examination witness repeated that she neither saw nor heard the automobile. Saw the street car coming, also a wagon, while she was on the crossing. Did not hear any man halloo to her to stand still, and had got almost to the curb on the far side of the street when she was struck. Was walking just as she usually did to get across, "pretty fast," in order to get over. At the time she was spry on her feet. Saw the street car stop before it crossed the tracks at Kossuth. Had seen it after it left Lee avenue, and had kept her eye on it as it was coming along, so as to get over and ready to take it when it got to the stopping place. Did not see the automobile at all. It was a bright, light day.

Two physicians testified to their treatment of plaintiff and to the injuries which she had received.

The motorman of the street car, who was running that car at the time the accident occurred to plaintiff, testified: That about noon he was coming south, running his car along Kossuth and Lee, on Grand, at the crossing there. Was coming south along East Lee avenue, he thought, and noticed an automobile pass by "at a pretty good speed." The next thing he saw, the machine hit Kossuth avenue, and there was a lady crossing Kossuth avenue, and the right front wheel of the automobile hit the lady "along about the limbs," knocked her down, and ran over her and went on about 10 feet and stopped. He pulled up his car before they had taken the lady up. They took her up in front of his car and took her to the doctor's office. Saw her struck by the automobile. When he first saw the automobile, it passed in front of his car on the west side going south and his car was going south. He was standing on the front end of the car in charge of the car and going toward Kossuth avenue. The machine was going at "a pretty good speed." To the...