Lavine V. United Rys. Co. of St. Louis

• Decision Date: 06 January 1920
• Docket Number: No. 15652.,15652.
• Citation: 217 S.W. 574
• Parties: LAVINE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

217 S.W. 574

LAVINE v. UNITED RYS. CO. OF ST. LOUIS.

No. 15652.

St. Louis Court of Appeals. Missouri.

January 6, 1920.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by Ike Lavine against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Chauncey H. Clarke, all of St. Louis, for appellant.

James C. Shaner, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover damages for personal injuries sustained by plaintiff, and for property loss and damage alleged to have been caused by the negligence of defendant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff, from which the defendant prosecutes the appeal.

On October 16, 1915, the defendant was engaged in operating a street railway system in the city of St. Louis as a common carrier. Defendant maintained two tracks on Vandeventer avenue in said city, a street extending north and south, crossing at right angles Greer avenue and Sullivan avenue, two streets in said city extending east and west; Greer avenue lying to the south of Sullivan avenue. On the day mentioned, plaintiff, driving a huckster's wagon in which he was seated, was proceeding westwardly along the alley between Greer avenue and Sullivan avenue, mentioned above, approaching Vandeventer avenue. The evidence is that this alley was 150 feet north of the north curb of Greer avenue; that street being 30 or 40 feet wide. Plaintiff drove out of this alley upon Vandeventer avenue, his horse proceeding at a slow walk, and attempted to cross defendant's tracks on said street. Before his wagon had cleared the east or north-bound track, it was struck by one of defendant's north-bound cars and was overturned, whereby plaintiff was thrown to the street and injured, and by reason whereof plaintiff's wagon was damaged and the contents thereof were destroyed or lost.

It appears that on the south side of the alley was situated a garage, which was about 12 feet from the east line of the sidewalk on Vandeventer avenue, and that a fence 6 or 7 feet in height extended from the garage to a point near the sidewalk. Plaintiff's testimony is to the effect that after passing the garage he could see over this fence, but could see no farther "than the building at the corner of Vandeventer and Greer," but that after passing the fence—i. e., as he emerged from the alley—he could see three or four blocks south on Vandeventer avenue, and that as he emerged from the alley he saw defendant's north-bound car some distance south of Greer avenue. Viewing the evidence in the light most favorable to plaintiff, the car was then at least 190 feet away from him. According to the plaintiff's estimate of distances, as he sat in his wagon he was about 34 feet from the north-bound track when he first saw the car; the distance from the fence to the curbstone being about 14 feet, and the distance from the curbstone to the nearer rail of the track being about 20 feet. The testimony is that the horse and wagon together were about 21 feet in length. It appears that there was a deep gutter at the entrance to the alley, with a short, steep incline leading to the street.

Plaintiff does not say that the car stopped to receive or discharge passengers at the south side of Greer avenue, the usual stopping place; but there is other testimony in plaintiff's behalf to the effect that the car did stop at that point for such purpose. According to plaintiff's testimony, he continued to drive slowly toward the track, and when his front wheels were in the gutter, with the horse's head perhaps 9 or 10 feet nearer the track, the car was crossing Greer avenue, about "the middle of the street in Greer avenue," and that when his horse reached the east rail of the north-bound track, the car was on the north side of Greer avenue; that when "the horse was just going on the track" the car "must have been on the curb of Greer avenue and Vandeventer." Plaintiff testified that as the car approached him from Greer avenue it was traveling at the rate of about 10 to 12 miles an hour. It appears that shortly prior to the collision, when plaintiff saw the car bearing down upon him, he whipped up his horse and undertook to get across, but did not succeed in so doing; according to his testimony, the rear portion of the wagon was struck by the car.

According to the testimony of a witness for plaintiff, after the car passed Greer avenue it was traveling at about the rate of 7 or 8 miles an hour. A boy 12 years old, called as a witness for plaintiff, testified that he was on the fence on the west side of Vandeventer avenue, and observed what...