Inman v. United Railways Company of St. Louis

• Decision Date: 02 May 1911
• Citation: 137 S.W. 3,157 Mo.App. 171
• Parties: MARTIN INMAN'S ADMINISTRATRIX, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

137 S.W. 3

157 Mo.App. 171

MARTIN INMAN'S ADMINISTRATRIX, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

May 2, 1911

Argued and Submitted March 6, 1911

Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.

Judgment affirmed.

Morton Jourdan and T. E. Francis for appellant; Boyle & Priest of counsel.

(1) Plaintiff was not entitled to recover under the assignment charging failure to warn him of the car's approach because there was no evidence of such failure. McCreery v. Railway Company. 221 Mo. 18. (2) Plaintiff was not entitled to recover under the assignments that the car was operated at negligent speed, both at common law and under the ordinance, because--(a) The only testimony as to the car's speed was a mere guess. McCreery v. Railway Company, 221 Mo. 18. (b) There was no showing that if the car had been running at the maximum ordinance rate--two miles per hour less than it was guessed to have been running--the collision would not nevertheless have occurred and therefore, no causal connection was established, as is essential to a recovery. Bluedorn v. Railroad, 121 Mo. 258; Evans Brick Co. v. Railroad, 17 Mo.App. 624; Molyneaux v. Railroad, 81 Mo.App. 25; Schmidt v. Transit Co., 140 Mo.App. 182. (3) Plaintiff was debarred from recovering under either of the assignments of primary negligence because of his own contributory negligence. Stotler v. Railroad, 204 Mo. 619; Cole v. Railway, 121 Mo.App. 605; Reno v. Railroad, 180 Mo. 481; Walker v. Railroad, 193 Mo. 480. (4) Plaintiff was not entitled to recover under the last chance doctrine, since there was no proof (beyond a mere guess) as to the distance the car was from the wagon when plaintiff drove upon the track, and no proof (beyond a mere guess) as to the rate of speed the car was traveling, and there was, therefore, nothing upon which to base an inference that, after the danger became apparent, the car could have been stopped in time to have averted the collision, as is essential. Paul v. Railroad, 152 Mo.App. 577; Dey v. Railroad, 140 Mo.App. 461; Zurfluh v. Railroad, 46 Mo.App. 636; McGee v. Railroad, 214 Mo. 530, 541. (5) The estimates as to the distance the car was from plaintiff when he drove upon the track and as to the speed of the car were mere guesses, possessing absolutely no probative force whatever. McCreery v. Railroad, 221 Mo. 18.

Jamison & Thomas for respondent.

(1) In considering a demurrer to the evidence because of its insufficiency, all the evidence introduced by plaintiff is admitted to be absolutely true, and the plaintiff is entitled to the benefit of every reasonable inference to be deduced therefrom. Baird v. Citizens' Ry. Co., 146 Mo. 265; Buesching v. St. Louis Gas Light Co., 73 Mo. 219; Baxter v. St. Louis Transit Co., 103 Mo.App. 597; Meyers v. St. Louis Transit Co., 99 Mo.App. 363; Pauck v. St. Louis, Etc., Prov. Co., 159 Mo. 467; Buckley v. Kansas City, 156 Mo. 16; Steube v. Iron & Foundry Co., 85 Mo.App. 640; Shermerhorn Bros. & Co. v. Herold, 81 Mo.App. 461; Rine v. Railroad, 100 Mo. 228; Schafstette v. Railroad, 175 Mo. 142. (2) When it is shown that the car was running at a prohibited rate of speed and the car could have been stepped before it struck plaintiff, this tends to show negligence per se, and the reasonable inference from such evidence is, had the car been running at a lawful rate of speed, the collision would not have occurred. Kolb v. St. Louis Transit Co., 102 Mo.App. 143. (3) The evidence offered by the plaintiff was amply sufficient to entitle him to have his case submitted to the jury, and the trial court, therefore, committed no error in setting aside the nonsuit. Hanbeide v. St. Louis Transit Co., 104 Mo.App. 323; Sonnenfeld Millinery Co. v. Railroad, 59 Mo.App. 668; Cooney v. Railroad, 80 Mo.App. 226; Meyers v. St. Louis Transit Co., 99 Mo.App. 303; Schafstette v. Railroad, 175 Mo. 142; Gebhardt v. St. Louis Transit Co., 97 Mo.App. 373; Rine v. Railroad, 100 Mo. 228; Wallack v. St. Louis Transit Co., 125 Mo.App. 160; Sweeney v. Railroad, 150 Mo. 385.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.

Martin Inman, driving west in his buggy between the north rail of defendant's north track along Wash street and the curb, in St. Louis, when about one hundred feet west of the intersection of Sixteenth street with Wash, found a surrey standing in the street against the north curb, the surrey, about four feet nine inches wide, facing to the west. To continue on his way and pass the surrey it was necessary to turn off and drive between the surrey and the rails or track of defendant's road. His buggy was of the same width as the surrey, and the space between the curb and the north rail was about 10 feet. Before turning toward the track Mr. Inman looked through the window which was in the rear curtain of his buggy to see if any car was following. Seeing none he turned on toward the track and just as the left forewheel of his buggy reached the north car track, a car, operated by defendant, struck his buggy, broke the wheel, bent the axles, broke off the "reaches," as it is called, that is the coupling pole that coupled the hind and front end of the buggy together, and plaintiff was thrown out and cut, bruised and shaken up, being unconscious for awhile. He brought this action, charging violation of the "speed ordinance," and the "vigilant watch ordinance" of St. Louis, and also invoking the "last chance" doctrine, charging on this, that by the exercise of proper and reasonable care defendant's agents and servants could have stopped the car and avoided the collision with the vehicle driven by him but that the motorman of the car negligently and carelessly failed so to stop in time to avoid the collision with his buggy.

The answer was a general denial, with a plea of contributory negligence. This the reply denied.

At the trial before the court and jury, while there was no evidence introduced showing any violation of the "vigilant watch" ordinance, there was some evidence that the speed at which the car was being run was 12 miles an hour and that the track was clear between plaintiff's buggy and the oncoming car; that when plaintiff drove his buggy on the car track the car was from 100 to 200 feet east of him and that it was equipped with appliances, by the use of which it could have been stopped, if going at the rate of twelve miles an hour,...