Lambert v. Wells

• Citation: 264 S.W. 37
• Decision Date: 06 June 1924
• Docket Number: (No. 18579.)
• Parties: LAMBERT v. WELLS.
• Court: Court of Appeal of Missouri (US)

264 S.W. 37

LAMBERT v. WELLS.

(No. 18579.)

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied July 18, 1924.

Appeal from St. Louis Circuit Court; ranklin Miller, Judge.

"Not to be officially published."

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

Charles W. Bates, T. E. Francis, Vance J. Higgs, and Robert J. Keefe, all of St. Louis, for appellant.

Roby Albin and Alonzo A. Alexander, both of St. Louis, for respondent.

DAVIS, C.

This is an action for damages for negligently permitting a car propelled by electricity to strike plaintiff while crossing the car tracks. The jury awarded, plaintiff a verdict for $5,000, but as she remitted $1,000 judgment was entered for $4,000, from which defendant appealed.

The petition contained the following assignments of negligence: (1) Operation of car at a dangerous and excessive speed; (2) failure to keep a vigilant watch; (3) failure to stop the car in the shortest time and distance possible on the first appearance of danger to plaintiff; (4) after the persons in charge of the car saw, or by the exercise of ordinary care could have seen, the plaintiff in a position of peril, they (a) negligently failed to stop the car or check its speed, and (b) negligently failed to give a signal or warning of the car's approach to the public crossing, or to give plaintiff any signal or warning of the approach of said car.

Defendant's answer was (1) a general denial, and (2) a plea of contributory negligence in going toward a street railway track and into the side of and in close and dangerous proximity to a moving street car, when she could have avoided doing so and avoided the collision.

Plaintiff's evidence tends to show that defendant was receiver of the United Railways Company of St. Louis, and as such controlled and operated the Creve Coeur Lake line, consisting of double tracks, one designated the east-bound and the other the west-bound, running from Delmar Carden to Creve Coeur Lake in St. Louis county. It was admitted that defendant was operating the street car lines that cross and pass Goodale avenue and the Creve Coeur Lake line, and the cars mentioned in the evidence or petition. Plaintiff was injured at Goodale avenue or station, in St. Louis county, while crossing from north to south defendant's Creve Coeur Lake lines tracks, which were not laid in a street, and which tracks run in a general east and west direction. A cinder platform is maintained outside both the east and west bound tracks to receive and discharge passengers. A cinder pathway runs from the cinder platform to the north of the tracks, where westbound passengers are received and discharged, across both defendant's west and east bound tracks, to the cinder platform to the south of the tracks, where east-bound passengers are received and discharged. A shelter station abuts the platform on the south of the tracks. There is no wagon road across the tracks, but the cinder pathway is used by foot travelers and maintained for that purpose. The cinder pathway is referred to as Goodale avenue. At the point where the cinder path crosses the tracks the tracks are straight, but 300 or 400 feet west of the point so plaintiff testified, the tracks curve to the north. A witness for plaintiff testified that the curve is about the length of an ordinary city block west of Goodale avenue. Another witness said the curve began at a point 150 or 175 feet west of Goodale avenue. Plaintiff stated that, standing on the south rail of the west-bound track, she could see about 300 or 400 feet west, and from a point midway between the two tracks she could look west along the east-bound track about 400 feet. The car tracks are about 5 feet wide from rail to rail and the distance from the south rail of the west-bound track to the north rail of the east-bound track is eight feet.

Plaintiff's evidence further tends to show that she was 64 years of age, was not a fast walker, was stout and heavy, had had rheumatism, and weighed 175 or 180 pounds. Plaintiff, after being hit by the car, was knocked and thrown by the impact on to the south cinder platform, and partly into a ditch, to the south of the south rail of the east-bound tracks, and seemingly the southeast front end of the east-bound car struck her just as she was about to get off the tracks.

On September 5, 1919, at some time between the hours of 10 and 11 at night, plaintiff alighted from a west-bound car at Goodale station, getting off at the rear entrance of the car at or near the cinder platform on the north side of the west-bound track. The car proceeded on its way. When it had gone about 50 or 100 feet she started to cress the tracks, walking south along the cinder path across the tracks. She looked both east and west before starting to cross and saw no car. When she reached the south rail of the westbound track she could see west about 300 or 400 feet. When she reached a point midway between the two tracks she again looked to the west, and could see west along the eastbound track for a distance of about 400 feet. She saw no car coming at that time. She continued to walk south, and just as she reached the center of the east-bound track she noticed the reflection of the east-bound car, which subsequently struck her. Following is her description of the accident:

"I got off the rear end of the car onto the cinder platform and the car went west after I got off, and I stopped and I looked east and I looked west, and I heard no car and I heard no whistle, and I started to walk across the path; when I looked again and saw no whistle, I went on. I continued to walk over towards Goodale avenue sidewalk and as I was in the middle of the east-bound track I saw a reflection of the car coming, and the headlight blinded me, and I was so frightened I could not move. I just could not move, I was so frightened, and by the time that I got strength to get off the south rail the car struck me and knocked me into the station, against the station, into the ditch that is there."

Plaintiff then gave this testimony:

"Q. How far away from this station does the curve begin to carry the car north as it goes westward? A. Carry the car north? Q. How far is this curve from the station? A. Well, I think its about 300 or 400 feet. Q. When you got in the middle of the car track, carrying the car east, this reflection of the headlight that you speak of—A. Yes. Q. Do you know how close that was to you when you saw it first? A. Well, I think it must have been about—I don't know; about 150 feet or 200."

There was testimony by plaintiff that no warning signals were given as the car approached Goodale avenue and before it collided with her. From the place where the track curves there is a slight up grade in the direction of east; that is, a car going east would be running on a slight up grade.

Peter Beyert, a witness for plaintiff, testified that he lived a short distance from the site of the accident. Ills house is located about 75 or 80 feet south of Goodale station. As the east-bound car approached he was sitting on his front porch, and watched it while it traveled about 150 feet before reaching Goodale. He could see the light of the car from his house for a distance of about 200 feet. The speed of the car was every bit of 20 miles an hour. The headlight of the car was burning at the time, and threw a light for quite a distance, 150 feet, and on a straight stretch 200 feet. He also observed the west-bound car from which plaintiff had alighted, although there is no testimony that he saw her alight from it. The front end of the west-bound car was about 15 feet west of the cinder path across the tracks (Goodale avenue) when the front " end of the eastbound car passed it; that is, the front ends of the two cars were on a line about 15 feet west of the cinder path, and in the center of what would be the wagon road of Goodale avenue. There is an electric street light at the intersection of Goodale avenue and the car tracks. This light is located just north of the west-bound track.

W. P. Smith, a motorman, testified for the plaintiff that he was familiar with the cars operated on the Greve Coeur Lake line, and that a car such as the one involved in this case, miming at a speed of 20 miles an hour, could be stopped within 50 feet.

Defendant's evidence:

The testimony of defendant's motorman on the car that struck plaintiff tends to show that, at the time plaintiff was injured, the conductor was operating the car, the motorman sitting on the sand box by his side. It was the motorman, however, that ultimately stopped the car after plaintiff was injured, for he pushed the conductor out of the way and took charge of the controls; that is, applied the brake and cut off the power. While the motorman stated that plaintiff came into collision with the right or south side of the car at a point near the rear, he saw her, prior to the collision, on the cinder path on the south side of the tracks, and entirely clear of the east-bound car. When he first saw plaintiff, she was coming toward him on the cinder path about 2 feet outside the south rail of the east-bound tracks, and he made different statements to the effect that she was from 30 to 40 to 50 to 60 feet from his car when he first saw her. The motorman stated that after the car passed plaintiff he heard a noise at the rear end of the car, about the third or fourth window, about the rear end, he heard a knock or a rap, like an echo, like that, and he heard a scream. He applied the brake immediately and cut off the power. He then stated that after he heard this lady holler he stopped immediately, within 45, 50, or 60 feet, or it might have been 60 or 70 feet, he did not know. On cross-examination he stated he saw her before the accident happened about 60 or 70 feet, he imagined. He then stated he was about 60 feet from her when ...