Keeney v. Wells

• Citation: 257 S.W. 1075,214 Mo. App. 79
• Decision Date: 08 January 1924
• Docket Number: No. 18362.,18362.
• Parties: KEENEY v. WELLS.
• Court: Court of Appeal of Missouri (US)

257 S.W. 1075

214 Mo. App. 79

KEENEY v. WELLS.

No. 18362.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

Rehearing Denied January 26, 1924.

Appeal from St. Louis Circuit Court; Chas. W. Rutledge, Judge.

Action by R. M. Keeney against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant. Wood & Teasdale and John C. Tobin, both of St. Louis, for respondent.

ALLEN, P. J.

This is an action for personal injuries alleged to have been sustained by plaintiff, when an automobile driven by him was struck by a street car operated by the defendant in the city of St. Louis, charged to have been caused by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $1,200, and the defendant has appealed to this court.

The collision between defendant's street car and plaintiff's automobile occurred on April 19, 1921, on Easton avenue, about a half block east of Belleglade avenue, public streets in said city. On Easton avenue the defendant maintains two street car tracks; the north track being for the operation of west-bound cars and the south track for the operation of east-bound cars. The evidence shows that plaintiff drove his automobile, a Ford, south on Belleglade avenue to Easton avenue, intending to cross defendant's tracks and turn to the east, in order to drive east on the south side of Easton avenue. According to plaintiff's testimony., when he reached Easton avenue, he brought his automobile to a stop and looked for traffic on that street, saw an east-bound car of defendant approaching from the west on defendant's south track on Easton avenue, the car being then, in his judgment, 200 or 250 feet away, and, thinking that he had ample time to cross in safety, proceeded toward the tracks; his automobile being in low speed. When his automobile was upon the east-bound track, he heard the gong of the street car, and then noticed that the car was not more than 10 feet away from him. He thereupon "pulled down the gas," and tried to get across as quickly as possible, but the street car struck the rear edge of the right rear wheel of the automobile, turning it around and injuring him, though he was not thrown therefrom. He said that in "a fraction of a second" he would have been "in the clear." He testified that the speed of his automobile was from 5 to 7 miles per hour; that when he first saw the street car it was proceeding at "possibly about 15 to 18, maybe 20, miles an hour"; that he did not look again until he was on the east-bound track; that when he then saw the car, about 7 to 10 feet from him, he was unable to judge of its speed; and he said that the car ran "about a length and a half of the car" after the collision.

On cross-examination plaintiff said that, when he first saw the car, his automobile was stopped with the front wheels extending into Easton avenue perhaps a foot or two beyond the curb line, at which time he observed the car, about 200 to 250 feet west, proceeding "possibly 15 to 18 miles an hour"; that the front end of his automobile was about 18 or 20 feet north of the north rail of the east-bound track, and he proceeded toward the track at the rate of "5 to 6, possibly 7, miles per hour"; and he said that at the rate of speed at which his automobile was proceeding he could have stopped it in 4 feet. He further stated that Easton avenue is about 45 to 50 feet wide.

One Bloom, an eyewitness to the casualty, testified that plaintiff stopped his automobile "in Belleglade, on the other side of the crossing, about between 20 and 25 feet from the west track"; that, when plaintiff started his automobile from that position, the east-bound street car was "something about 100 or 125 feet" west of plaintiff. In another part of his testimony he referred to the car as being "maybe about 100 or 150 feet" west of plaintiff. He could not say how fast the car was going, nor what was the speed of plaintiff's automobile as it approached the track. The testimony of one Glover, who had formerly been a motorman, tends to show that the street car, under the circumstances present, if proceeding at the rate of 15 miles per hour, could have been stopped within 30 feet, and, if proceeding at the rate of 20 miles an hour, it could have been stopped in 50 feet.

It is unnecessary to refer to the testimony touching the character and extent of plaintiff's injuries, since no question is raised as to the amount of the verdict. Plaintiff introduced in evidence the vigilant watch ordinance of the city of St. Louis, providing that the motorman or other person in charge of each street car "shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving toward it," and that "on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible." And plaintiff also introduced a speed ordinance of the city of St. Louis, prohibiting the propelling of street cars at a greater speed than 15 miles per hour in that part of the city in which the casualty occurred.

The assignments of negligence in the petition are: (1) The failure of defendant's motorman to keep a vigilant watch for vehicles on the track or moving toward it, and his failure, upon the first appearance of danger to the automobile and to plaintiff, to stop the car in the shortest time and space possible; (2) the alleged negligent operation of the car at a rate of speed in excess of 15 miles per hour; and (3) an assignment based upon the last chance or humanitarian doctrine. The court, at the instance of the defendant, withdrew from the jury the third assignment of negligence, predicated upon the last chance or humanitarian doctrine, but refused, upon defendant's request, to withdraw the other two assignments of negligence, submitting them to the jury by instructions offered by plaintiff, and refusing a peremptory instruction offered by defendant in the nature of a demurrer to the evidence.

I. The first assignment of error made by defendant, appellant here, is that the trial court erred in refusing to peremptorily direct a verdict for it on the ground that the evidence shows that plaintiff was guilty of negligence as a matter of law contributing to his own injuries, precluding a recovery on any assignment of primary negligence. As shown above, it appears that upon entering Easton avenue plaintiff stopped his automobile and looked for traffic on that street, at which time he saw defendant's east-bound car. It cannot be disputed that up to this point plaintiff exercised ordinary care for his own safety. He did not, however, look again before going upon the tracks, and it is urged that his failure to look again was negligence as a matter of law. A careful consideration of all the facts and circumstances in evidence, however, has led us to the conclusion that whether plaintiff was guilty of negligence in failing to look again for the car before going upon the track is a question as to which the minds of reasonable men may well differ, and consequently was one for the jury. Defendant has cited us to a list of cases as supporting its position, which we have carefully considered.

In Biermann v. United Railways Co., 244 S. W. 94, wherein we held that plaintiff's negligence conclusively appeared, the plaintiff admitted that, after he came into a position where he could see the approaching car, he failed to look at all therefor until his horses were on the track. And likewise in Bendick v. Wells, 253 S. W. 394, in which we recently made a similar ruling, the plaintiff admitted that she failed to look for the street car until the automobile which she was driving had come upon the track. Obviously these cases, and others of similar import which might be cited, are here inapplicable.

In Gubernick v. Railroad, 217 S. W. 33, the plaintiff, driving a wagon and approaching the defendant's street car tracks at a speed of about 5 miles per hour, looked and saw the approaching car when his horse's head was about 33 feet from the nearer rail of the track upon which the car was approaching, and did not look again until the wagon was on the track and the collision inevitable. The Supreme Court held that, in view of the fact that plaintiff "jogged along at the rate of 5 miles per hour over the 33 feet of clear space, and never once looked again for the oncoming car," and "entered the danger zone without looking at all," his contributory negligence barred his recovery upon any assignment of primary negligence.

When the pertinent facts of the Gubernick Case are compared with those here present, we think that the decision therein is not authority for holding the plaintiff guilty of negligence as a conclusion of law in the instant case. In the Gubernick Case the plaintiff, driving a horse at 5 miles per hour, looked at a point 33 feet from the track and continued to approach the track at that rate without looking again. In the case before us plaintiff, having stopped his automobile for that purpose, looked and saw this car when the front end of his automobile was but 18 feet from the north rail of the east-bound track. Considering the "overhang" of the street car, he was, indeed, less than 18 feet—perhaps approximately 16 feet—from the danger zone. He was driving an automobile, capable of, rapid motion, and it appears that he at once started forward and proceeded toward the track at a speed which may be placed at 7 miles per hour, viewing the evidence in the light most favorable to him. At that rate he would traverse more than 10 feet per second, reaching the east-bound track in less than two seconds. While there is no testimony as to the width of the track or the length of defendant's automobile, it may be inferred that it would require but three or four...