Klockenbrink v. St. Louis & M. R. R. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Gantt
• Citation: Klockenbrink v. St. Louis & M. R. R. Co., 172 Mo. 678, 72 S.W. 900 (Mo. 1903)
• Decision Date: 24 February 1903
• Parties: KLOCKENBRINK v. ST. LOUIS & M. R. R. CO.

72 S.W. 900

172 Mo. 678

KLOCKENBRINK v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

STREET RAILWAYS—COLLISION WITH TEAM— CONTRIBUTORY NEGLIGENCE — AVOIDABLE INJURY — EVIDENCE — SUFFICIENCY — APPEAL—DEMURRER TO EVIDENCE—WAIVER.

1. Defendant, by putting in evidence after its demurrer to plaintiff's evidence has been overruled, does not thereby waive its right to have the ruling of the court reviewed on appeal; but the appellate court will consider the whole evidence, whether offered by plaintiff or defendant.

2. Evidence in an action against a street railway company for injuries considered, and held sufficient to justify a finding that the motorman saw, or by the exercise of ordinary care could have seen, plaintiff's wagon on the track in time to have avoided the accident.

3. Contributory negligence of plaintiff, if it be such, in driving on the tracks of a street railway company at night, does not preclude his recovery, when defendant's servants saw, or by the exercise of reasonable care could have seen, plaintiff in time to avoid injury to him, and failed to do so.

4. A street railway has not an exclusive right to the use of its tracks laid in a public highway, nor are persons driving on its tracks trespassers.

5. The fact that plaintiff, in an action against a street railway company for injuries, did not count on the negligence of defendant in running its car at a high rate of speed and failing to ring the gong, did not entitle defendant to an instruction declaring evidence on such points immaterial, where it was admitted without objection, and defendant itself introduced evidence on the subject.

Appeal from St. Louis Circuit Court; P. R. Flitcraft, Judge.

Action by E. F. Klockenbrink, Jr., against the St. Louis & Meramec River Railroad Company. From a judgment for plaintiff, defendant appeals. Removed to Supreme Court from St. Louis Court of Appeals by reason of a division of opinion. Affirmed.

Action for personal injuries. Suit commenced November 19, 1898. Amended petition filed March 15, 1899. The petition, as amended, states that defendant is a railroad corporation organized under the laws of this state, and was on 19th of July, 1898, operating its railroad over and along the streets and highways of Webster Groves, a town in St. Louis county; that on that day plaintiff was driving a large staked wagon, to which was attached two horses, over and along a highway in St. Louis county, to wit, Lockwood avenue, in said town of Webster Groves, going in an easterly direction; that one of defendant's servants in charge of one of its cars, moving along and upon its track in Lockwood avenue in the same direction in which plaintiff was traveling, and at a high and unusual rate of speed, carelessly and negligently ran into and against plaintiff's wagon from the rear; that the said defendant, by its said servant, at the time saw said wagon, which plaintiff was driving, or in the exercise of reasonable care might have seen said wagon and plaintiff, in time to stop the said car before striking or running into said wagon; that the wagon was broken, torn to pieces, and one of the horses killed, and the other permanently disabled, and plaintiff was thrown to the ground, his finger broken, his back sprained, and he was otherwise maimed, bruised, and wounded in his body, and has suffered and will continue to suffer much pain in body and mind, and has been permanently injured and disabled, has been compelled to spend large sums of money for medicine and medical treatment, etc., to his damage in the sum of $2,500 for which he prays judgment. The answer is a general denial, and a plea of contributory negligence on the part of plaintiff in driving upon the defendant's track on a dark night, when there was plenty of room on a well-improved street where he could have driven, and continued to drive on the tracks without looking or listening for an approaching car. The reply denied all new matter. There was a verdict and judgment for plaintiff for $1,500, from which defendant appeals. Various errors are assigned, which we will consider in their order. The appeal is in this court by reason of a division of opinion in the St. Louis Court of Appeals.

McKeighan, Barclay & Watts and R. A. Holland, Jr., for appellant. R. P. Williams, for respondent.

GANTT, P. J. (after stating the facts).

1. Did the circuit court err in overruling the demurrer to the evidence? As the defendant did not stand on its demurrer at the close of plaintiff's evidence, this question must be answered in view of the whole evidence— that which was offered by defendant, as well as plaintiff. McPherson v. Ry. Co., 97 Mo. 253, 10 S. W. 846. The defendant, by putting in its evidence after its request for such an instruction had been made and overruled, took the chances of curing any defect in the plaintiff's evidence, but did not wholly waive its right to have the ruling of the court reviewed; but this court will look to the whole evidence, no matter by whom offered. This is the settled practice in this state. Eswin v. Ry. Co., 96 Mo. 294, 9 S. W. 577; Jennings v. Ry. Co., 112 Mo. 268, 20 S. W. 490.

The testimony established that plaintiff, on the 19th of July, 1898, was a teamster; that he drove two horses to a very large stake wagon, and on that day had taken a load of freight from St. Louis to Kirkwood, in St. Louis county, and was returning to the city in the night; that his route required him to come through Webster Groves, and when he reached that town, coming from the west, he entered upon Lockwood avenue, a street or highway on which defendant had its railroad tracks. From the top of the hill on which he came into Lockwood avenue there was a decline for about 1,800 feet, and then another elevation was reached. It was about midnight. Plaintiff drove safely down the first hill, and had gone about 200 feet up the second, when one of defendant's electric cars struck his wagon from the rear, and killed one of his horses, crippled the other, and threw plaintiff out of the wagon, severely injuring him. At the time the wagon was struck by defendant's car, one of the horses and the two left wheels were inside of the rails of defendant's track, and the other horse and the remainder of the wagon were outside, and between the south rail and the curb line, which was about 12 feet distant. Between the south rail and the curb line there were telephone poles at intervals of about 150 feet, so that plaintiff's wagon could not pass between the telephone poles and the south track without coming within the reach of a car, should one pass the wagon opposite the poles. There was also evidence that a buggy in which there were three men was traveling along the avenue that night, and near this wagon. The plaintiff's witnesses all place this buggy some 30 to 60 feet in the rear of the wagon, and following it. The defendant's witnesses testified that the buggy was in front of the wagon, some 35 to 50 feet ahead of the wagon, when the motorman first discovered it.

As usual, there was considerable discrepancy as to the rate of speed at which the car was moving. It was variously estimated from 15 to 18 or 20 to 25 miles an hour. The plaintiff neither observed or heard the approach of the car. The testimony of Rockwell, the electrician for the defendant, was that, if there was a mist or rain on the headlight, the motorman ought to see an object on the track 75 feet ahead of him. If there was no mist or rain on the headlight, he ought to see 150 feet ahead of him. Greenhurst the motorman, says he could stop the car, moving as it was at the time, within 100 feet, and Rockwell, as an expert, concurred in that statement. Both Greenhurst and McManus, who stood in the front door of the car talking to Greenhurst, say they saw the buggy about 35 to 40 feet ahead of the car when they first noticed it. Ralston, who was riding in the buggy, testified that when the car passed the buggy the motorman had not applied his brake, and his right hand was hanging at his side. He could not see the position of his left hand. Mr. John C. Berthold was a passenger on that car at the time, and says he heard no bell; that the effort to stop the car was not made over two seconds before the collision occurred.

The evidence for the plaintiff tended to show the buggy was not on the track, but was driven along by the side of it; but the defendant's evidence tended to prove the buggy had been on the track, and was driven off just before the collision, and that until that movement the wagon was obscured by the buggy. The evidence also tended to show that, when the car reached a point 40 or 50 feet west of or in the rear of the buggy, not only the buggy was plainly visible, but...