Irwin v. United Railways Company of St. Louis

• Decision Date: 06 February 1917
• Parties: ANDREW IRWIN, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent
• Court: Missouri Court of Appeals

191 S.W. 1130

196 Mo.App. 666

ANDREW IRWIN, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent

Court of Appeals of Missouri, St. Louis

February 6, 1917

Appeal from St. Louis City Circuit Court.--Hon. Wilson A. Taylor Judge.

REVERSED AND REMANDED (with directions.)

Judgment reversed and cause remanded.

Rodgers & Koerner for appellants.

(1) A demurrer to the evidence admits as true every inference that may be reasonably deduced therefrom inference that may be reasonably deduced therefrom. Strauchon v. Street Railway Co., 232 Mo. 587, 595. (2) The case should have been submitted to the jury. The evidence tended to prove that defendant was negligent in at least two respects; one, in operating its car at excessive speed; and, two, in failing to keep a vigilant watch and to stop its car upon the first appearance of danger to plaintiff. Strauchon v. Street Railway Co., 232 Mo. 587; Meenach v. Crawford, 187 S.W. 879, 884; Ingino v. Street Railway Co., 179 S.W. 771; Shafstette v. Railroad, 175 Mo. 142, 150; Mather v. Railroad, 166 Mo.App. 142, 148. The evidence does not show contributory negligence on plaintiff's part as a matter of law. Authorities supra. Criss v. United Railways Co., 183 Mo.App. 392, 402; Lueders v. Railroad, 253 Mo. 97.

Boyle & Priest, W. Blodgett Priest and L. Marquard Forster for respondent.

(1) The evidence introduced by the plaintiff does not show negligence on the part of the defendant company. Lorenzen v Railroad Co., 249 Mo. 183; McCreery v Railroad, 221 Mo. 18; Osborne v. Railroad, 166 S.W. 118. (2) There was no proof of excessive speed on the part of the defendant, still had there been such proof, the negligence of the plaintiff in failing to stop before going upon the track, when by the exercise of ordinary care, he could have seen the impending danger, bars a recovery. McCreery v. Railroad, 221 Mo. 18; Stoetler v. Railroad, 204 Mo. 619; Huggart v. Railroad, 134 Mo. 673; Roenfeldt v. Railroad, 180 Mo. 554; Laun v. Railroad, 180 Mo. 554. The plaintiff cannot recover on the theory that he thought the car was running in compliance with the speed-governing ordinance, because there was no evidence to show that he knew of such ordinance or that he relied on such ordinance. Mockowik v. Railroad, 196 Mo. 550, 571; Paul v. Railroad, 152 Mo.App. 577, 587; Voelker Products Co. v. Railroad, 185 Mo. 310. The court rightly took the case from the jury on the humanitarian doctrine--(a) As there was no evidence to show that the motorman could have stopped the car in time to have averted the collision, after he saw, or by the exercise of due care, could have seen the wagon in a position of danger. Borina v. Railroad, 194 Mo. 541; Reno v. Railroad, 180 Mo. 469; Giardina v. Railroad, 185 Mo. 335; Markowitz v. Railroad, 816 Mo. 350; Roenfeldt v. Railroad, 180 Mo. 565. (b) Because the plaintiff being fully aware of the approach of the car, knowingly allowed himself to be placed in a position of danger. Kinlen v. Railroad, 216 Mo. 145, 164.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

In our statement of facts we are adopting the statement of appellant practically in toto.

This is a suit for damages for personal injuries alleged to have been sustained by plaintiff being thrown to the ground and injured as a result of the rim of the right hind wheel of the wagon, in which plaintiff was riding, being struck by a street car owned and operated by the defendant company. The alleged injuries were sustained on May 24, 1913, about midnight.

The plaintiff's petition makes the following assignments of negligence: :

"That defendant's servants in charge of said car failed to keep a vigilant lookout for persons and vehicles crossing the car tracks;

"That defendant's said servants operated said car at a rate of speed exceeding the limit of fifteen miles per hour prescribed by the ordinance of the city of St. Louis;

"That defendant's said servants failed to keep and have said car under such control that they could stop the same upon the appearance of danger to persons lawfully on the car tracks;

"That defendant's said servants saw, or by the exercise of ordinary care could have seen, plaintiff on his wagon crossing said car tracks in a place of danger, but negligently failed to stop said car before colliding with said wagon, although by the exercise of ordinary care on their part said car could have been stopped after plaintiff's perilous position was, or by the exercise of ordinary care on their part could have been, seen by them."

The answer was a general denial and a plea of contributory negligence.

Plaintiff's evidence tended to prove that at the time in question he was driving a one-horse wagon westwardly along the north side of St. Louis avenue, a public street of the city of St. Louis, upon which a double street car track is laid. When he arrived opposite the entrance to the alley which extends southwardly from St. Louis avenue one hundred and fifty feet east of Union avenue, and which leads to the barn where he kept his horse, plaintiff turned his horse southwardly with the intention of crossing St. Louis avenue and entering this alley. As his horse started to turn to the south, plaintiff looked and saw an eastbound street car on the south track on St. Louis avenue. This car was then west of Union avenue and moving eastward. Plaintiff thought he had plenty of time to cross the tracks in safety, but about the time his horse entered the said alley the said street car struck the rim of the hind wheel of his wagon. From the time plaintiff turned his horse to the south and started across the street railway tracks until the time when the car struck the wagon, plaintiff's horse had been moving in a walk at the rate of three or four miles an hour, and had moved a distance of twenty-five or thirty feet. Union avenue is one hundred feet wide where it crosses St. Louis avenue, and, as has been above stated, this alley is one hundred and fifty feet east of Union avenue. The headlight of the said street car was lighted and burning, and there was a street lamp on the west side of the entrance to this alley.

On cross-examination, plaintiff testified that after he started across the tracks he did not again see the car until it struck the wagon; that he was watching where he was going and thought he had plenty of time to cross the tracks without being hit.

Plaintiff's testimony was corroborated by that of his son, Cole Irwin, who was with him at the time.

William P. Smith, who qualified as an expert, testified that at the place in question one of the defendant's east-bound cars crossing Union avenue and running eastwardly on St. Louis avenue, if running at the rate of fifteen miles per hour, could be stopped within seventy feet.

Plaintiff offered in evidence sections 2380 and 2381 of the Revised Code of St. Louis of 1912, and it was admitted that St. Louis avenue, at the place mentioned in the evidence, is within the "outer district" mentioned in section 2381 of ordinance. It was also admitted that the street car mentioned in the evidence was owned and operated by defendant.

At the close of plaintiff's case the court, at defendant's request, peremptorily instructed the jury to find for defendant. Plaintiff then took an involuntary nonsuit and in due course filed his motion to have the nonsuit set aside, which motion the trial court overruled, and appellant appealed.

I. The sole question in this case is whether there was any error in the action of the court in...