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

• Decision Date: 19 September 1921
• Docket Number: No. 17400.,17400.
• Parties: HUCKSHOLD v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

234 S.W. 1072

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

No. 17400.

St. Louis Court of Appeals. Missouri.

September 19, 1921.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Albert Huckshold against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appealed to the Supreme Court (226 S. W. 852), which transferred the cause. Affirmed.

This is a tort action in which defendant, a street railway company, is charged with negligently operating one of its street cars, in that its motorman failed in his duty to exercise ordinary care to stop the car after he saw, or by the exercise of ordinary care might have seen, that plaintiff was in a dangerous position on the track and was not going to get off in time to avert a collision. There were other charges of negligence, but they were all instructed out of the case, save and except the charge that defendant breached its duty toward plaintiff under the last chance doctrine.

There was a verdict and judgment for plaintiff, from which defendant has appealed, claiming, in the main, that tinder the evidence the cause should have been taken from the jury and its peremptory instruction to find for defendant given.

Other assignments of error will be considered after disposing of the main question, which requires a statement of the facts. Defendant offered no evidence, but stood on its demurrer, and, of course, as has been so often said, the evidence under such circumstances must be considered in the light most favorable to plaintiff, and from such evidence must be drawn every reasonable inference of fact to support plaintiff's case.

Facts.—In the early morning of December 24, 1917, at about the break of day, 6:40 a. m., the plaintiff, an employé of Swift & Co., meat packers, was driving a single horse wagon, loaded with 3,500 pounds of meat, south on Vandeventer avenue, a public highway in the city of St. Louis. This street is about 35 feet wide, and the center contains defendant's street car tracks; the west track being used for south-hound and the east track for north-bound traffic. Between the tracks and curbs is a space of about 12 feet, and the street is paved with cobblestones or granite blocks. When the plaintiff had reached a point a short distance south of Talmage avenue, another public street which intersects Vandeventer avenue, and was proceeding with his horse in a walk at the rate of four miles an hour, pulling the load along the tracks of the defendant's railway, a street car proceeding southwardly in the same direction collided with the rear end of the wagon with such force as to cause the horse and wagon to be pushed from the track and turned in the opposite direction; that is, after the collision the horse and wagon were at the side of the car and facing north. Plaintiff was thrown from his seat on the wagon and received injuries for which he brings this suit.

At the time the street lights were still burning. There was a light on the west side of Vandeventer avenue about 10 feet south of the point where the collision occurred, and another light on the east side about opposite the point. There was also a light at the corner of Talmage avenue a short distance to the north. There is ample evidence showing there was sufficient light at the time for one to observe a wagon or person at least a block away. One witness noticed a dog about a block away; another observed the street car more than two blocks away. There was a slight curve in the track near the point of the collision, but there is no contention that such curve interfered with the view of the motorman. There was no rain or snow at the time, and the track was dry.

Due to the fact that there were other wagons standing next to the curb on the west side of the street and perhaps partly by reason of the fact that traveling was easier on the tracks than upon the side of the street due to its condition, the plaintiff entered upon the tracks of the defendant some 600 feet north of the point of collision and drove thereon southwardly to the place of the accident. Plaintiff testified that he did not hear the car immediately before being struck, but before that he had looked back to the north mid saw a south-bound car approaching, at which time the car was about three-quarters of a block away or 225 feet; that when he observed the car he immediately started to turn out of the tracks by pulling his horse to the right; and that he had succeeded in getting the front wheels off of the tracks when the car collided with the rear end of the wagon. The evidence tended to prove that the car was traveling 18 or 20 miles an hour, and according to two witnesses its speed was not slackened until just as it struck the wagon, and that the car was then stopped, according to one witness, in 5 feet, and, according to another, in half the car's length or about 21 feet. One witness was sitting in the front end of the car and observed the wagon on the track when the car was two or three car lengths from the wagon. At the time the plaintiff had a white tarpaulin over the load on the back end of the wagon and also had on a white coat, which, according to this witness, made the wagon easily observable at the time. This witness also observed the color of the horse, a dapple gray, and testified that at the time the plaintiff was trying to pull out of the track toward the west curb. At the time the witness who was on the inside of the car observed the wagon on the track in front of the car, the wagon, as stated, was two or three car lengths away. The car was 42 feet long, and two car lengths would place the car 84 feet from the wagon, or three car lengths would place it at 126 feet away. As stated, the evidence tended to prove that the speed of the car was not slackened until the time of the collision, and that the car was then stopped within half its length.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

Safford & Marsalek, of St. Louis, for respondent.

BIGGS, C. (after stating the facts as above).

Defendant's counsel complain of...