Lackey v. United Rys. Co.

• Decision Date: 26 May 1921
• Docket Number: No. 21691.,21691.
• Citation: 288 Mo. 120,231 S.W. 956
• Parties: LACKEY v. UNITED RYS. CO.
• Court: Missouri Supreme Court

231 S.W. 956

288 Mo. 120

LACKEY v. UNITED RYS. CO.

No. 21691.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

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

Action by Ruby Lackey against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

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

W. H. Douglass, of St. Louis, for respondent.

WHITE, C.

The appeal in this case is from a judgment in favor of the plaintiff, recovered on account of the death of the plaintiff's husband, John W. Lackey, caused by the alleged negligence of the defendant.

Lackey, while a pedestrian on the street, was struck and killed by a street car of the defendant July 23, 1918. At that time the defendant operated two parallel street railway tracks, called the Hodiamont tracks, along its private right of way across Plymouth avenue. Plymouth avenue at the point of intersection ran east and west and was 45 feet wide. The right of way was about 22 feet wide. The street car tracks at that point were each 5 feet wide with a space of 4½ feet between them. Along that space was a ditch 3½ feet wide and 18 inches deep. North-bound cars ran on the east track, and south-bound cars ran on the west track. A drug store stood at the northwest corner of Plymouth avenue and the right of way. A granitoid walk or landing was on the east side of the drug store where passengers boarded and alighted from cars running south. This sidewalk was about 40 feet long, and at the front was against the drug store and extended 8 feet 4 inches toward the track, with a space of 20 inches between the edge of the walk and the west rail of the west track. On the southeast corner of Plymouth avenue and the right of way was likewise a granitoid walk 3½ or 4 feet wide, extending along the track southward from Plymouth avenue about 75 feet, where cars going north regularly discharged and received passengers. The following sketch shows approximately the position of the street, the car tracks, and surrounding objects:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the day mentioned John W. Lackey, husband of the plaintiff, was seen on the walk alongside the drug store. He was seen to step down from the walk into the 20-inch space between that and the west rail of the south-bound track, or upon that rail. This was at a point 8 or 10 feet north of the north line of Plymouth avenue. He was not seen any more by any witness who testified until the instant before he was struck by a car running north on the east track; he was then at a point where the sidewalk crosses that track, about 20 feet from where he was first seen.

Three witnesses for the plaintiff testified to seeing the incidents preceding and at the moment of the collision. Two of these witnesses, Hadley and Cahill, were diagonally across the street at the southeast corner of Plymouth and the right of way on the granitoid walk where passengers were received upon cars running north; the third was Katie Self, sitting on the east end of her porch on the north side of Plymouth avenue and east of the track. Referring to the plat which we have made for convenience, "a" represents the point where Lackey was seen to step down off the walk by the drug store at a point 8 or 10 feet north of the north line of Plymouth avenue; "b" is the point on the north-bound track where he was struck; his body was found at point "c" between the two tracks about 25 feet north of where he was struck; "d" is the point where two witnesses, Don Hadley and John Cahill, were standing when Hadley saw Lackey step off the walk at point "a"; "e" is the point on the porch of the house east of the track where Katie Self was sitting and saw the collision; "f" is the point where Hadley was at the moment of collision; "g" is the point where Cahill was at the instant of collision.

The only person who saw Lackey at the point "a" was Hadley. He was then at point "d," talking to Cahill, and waiting for a car to go north. The moment he saw Lackey step down from the sidewalk at point "a," witness looked south and saw a car coming from that direction about 150 feet away. He signaled that car to stop for him, turned, and walked rapidly south along the granitoid walk about 20 feet, and didn't see Lackey any more until after he was struck. The car did not stop at his signal, but passed on, struck Lackey, and stopped with the rear end of the car about 35 feet north of Plymouth avenue. Lackey at that time was lying between the two tracks in the ditch, about 30 feet north of Plymouth avenue. The car was running at a very high rate of speed about 30 or 35 miles an hour. Cars going north on that track usually stop with the rear end about 40 feet south of Plymouth avenue and the front end about at the property line. Witness expected the car to stop at that point. It was about 8:30 in the evening of July 23d, and light enough for anybody to see. The car coming from the south could have been seen at a considerable distance by any one looking. The witness was cross-examined at length. He repeated several times that at the time be saw Lackey the latter was in the act of stepping off the sidewalk alongside the drug store 8 or 10 feet north of the sidewalk on Plymouth avenue. He said Lackey was walking slowly, looking down to see where to put his feet. At the point where he was Lackey could not conveniently have crossed the ditch between the tracks, but would have had to walk south 8 or 10 feet to the sidewalk on Plymouth avenue and cross the tracks on that sidewalk.

John Cahill testified that he intended to board a south-bound car which regularly would stop at die granitoid walk beside the drug store. He stopped at the point "d" on the southeast corner for a few minutes, talking with Mr. Hadley. It was his intention then to cross diagonally to the corner where he should take the next car going south. He did not see Lackey at that time. He saw the car Hadley intended to take coming from the south, about 150 feet away, and started to run diagonally across ahead of it. He crossed the north-bound track and had got about to the middle of Plymouth avenue on the south-bound track when he saw the car coming north was not going to stop for Hadley. His testimony then continued as follows:

"Q. Now, when you started from the southeast corner across there, how far was the car south of you then that Mr. Hadley wanted to get on, do you know? A. About 150 feet.

"Q. Did you see the car any more after that? A. Not until I got in the middle of the southbound track; then I heard him ringing the gong, and I turned around, and I seen he was going to pass Mr. Hadley up. I looked back and seen Mr. Hadley standing there; he was waving the paper for him to stop the car; I seen him ringing the bell and kept ringing, and I seen he was going to pass him up, and stood in the middle of the south-bound track, and as he got in the middle of Plymouth avenue he started to ring the bell again; and I seen Mr. Lackey about the middle of the car track. He started to step back. He seen he was too late, and he jumped up in the air, like to jump on the fender to save himself, and the car struck him and knocked him in the middle of the ditch. He landed on his feet, his face turned south. His head hit the car track, and his head lay on the car tracks, and the rear guard on the hind trucks struck his face and knocked him in the ditch. * * *

"Q. Now, where were you then? A. Standing in the middle of the south-bound track.

"Q. Where were you in Plymouth avenue, to the north side or in the middle, or to the south side? Right in the middle of Plymouth."

The witness testified that the car was running at a very high rate of speed, about 35 or 40 miles an hour; that the bell of the car was ringing when it arrived about 50 feet south of Plymouth avenue, and the motorman commenced ringing again loudly about the time he reached the middle of Plymouth avenue. He rang the bell hard and "hollered `Look out!'" He said, further, the car did not make much noise running on the right of way because it was not on a granitoid foundation. On cross-examination he said he would judge that Lackey jumped about 18 inches or 2 feet high; jumped like for the fender and grabbed the car so as to save himself; that he never saw Lackey until Lackey was on the north-bound track, when the front end of the car was within 15 or 20 feet of him.

Mrs. Katie Self testified that she lived on the north side of Plymouth avenue, east of the tracks; that her house stood back 50 feet from Plymouth avenue; that the west side of the house was only about 3% feet east of the track. She sat on the east end of her porch reading. She was suddenly attracted by the violent ringing of the bell of the street car. Street cars passed that way every four minutes through the day, ringing bells and making noises, and she usually paid no attention to the noise they made, but the ringing of the bell was so violent and unusual that she looked up, and this is the way she described the collision:

"Q. What did you see when you looked up? A. When I looked up when the bell was ringing I saw a man crossing the track. He was on the last track east—that is, the north-bound car track—and when I looked up the car was just about five feet from him, and he went to step forward and became confused and jumped in the air as if to let something go under him, as if he was going to be struck, and while he was in midair the car struck him.

"Q. Where was he at that time with reference to the crossing on Plymouth avenue; was he on the regular crossing? A. He was on the right of way for going back and forth.

"Q. Where people walk across? A. Yes, sir.

"Q. Which side of Plymouth, north or south? A. On the north side. He was going east.

"Q. Did you see the car after it stopped? A. Yes, sir.

"Q. Where was it with reference to the north side of Plymouth...