Maher v. St. Louis Public Service Co., 21992.

• Decision Date: 08 November 1932
• Docket Number: No. 21992.,21992.
• Citation: 53 S.W.2d 1099
• Parties: MAHER v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

53 S.W.2d 1099

MAHER v. ST. LOUIS PUBLIC SERVICE CO.

No. 21992.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be published in State Report."

Action by Thomas F. Maher, Jr., against the St. Louis Public Service Company. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and B. G. Carpenter, both of St. Louis, for appellant.

Strubinger & Strubinger, of St. Louis, for respondent.

BECKER, J.

Plaintiff had judgment against the defendant company for damages for personal injuries alleged to have resulted when struck by one of defendant's street cars. Defendant in due course appeals.

Plaintiff's petition alleges that the motorman in charge of defendant's street car failed to keep a vigilant watch, and also makes an assignment under the humanitarian doctrine.

The answer was a general denial.

Plaintiff testified that he was in the coal and ice business in the city of St. Louis, and that on the morning of October 20, 1928, he was delivering ice to his customers; that he drove his truck southwardly on Newstead avenue and parked it at the west curb facing in a southwardly direction. The point where he parked his truck was about 150 feet south of Sacramento avenue, and about 125 feet north of Natural Bridge avenue. He further testified that a gas filling station was located on the east side of Newstead avenue at a point almost opposite to where his motortruck was parked; that while he was standing on the rear end of his ice truck and in the act of cutting a piece of ice, he heard the siren of a fire department vehicle, and, upon looking up, he observed a fire department truck standing in the filling station across the street, and about to start away from it. He also heard the siren of a fire department vehicle which was apparently coming south on the east side of Newstead avenue and at a point some distance south of Natural Bridge avenue. Plaintiff testified that at this juncture he noticed a street car of the defendant company approaching from the north on Newstead avenue. It seemed to him to be crossing Sacramento avenue and distant approximately 150 feet north of where he was standing. Plaintiff immediately ran out into the south-bound car tracks, facing north toward the approaching street car, and waved his arms to "flag the motorman down"; that he then turned to an "angle of northeast to southwest," and looking, he saw a fire apparatus one-half block down the next block south. He was still standing in the middle of the street car tracks; that he "looked right back north" and defendant's street car was right on him. "Q. And you were not able to jump before you were hit? A. I was hit just as I jumped. * * * I jumped just as I was hit. I tried to jump but never had time." Plaintiff further testified that the street car did not stop after it struck him but proceeded on southwardly toward Natural Bridge avenue, crossing said street without stopping. According to plaintiff the street car was traveling at the rate of 15 to 20 miles per hour when he first saw the car prior to the collision.

Plaintiff was corroborated by a witness, William John Heier, who testified that he was helping plaintiff deliver ice on the day of the accident, and that upon hearing the fire siren blowing plaintiff got out into the center of the street car tracks and flagged the motorman; that the street car at that time was 50 to 75 feet from plaintiff; that the witness turned around to see how many customers he had to serve, and that when he again turned around he saw that the street car was right on top of plaintiff; that he yelled a warning to plaintiff, but that as plaintiff was about to jump he was struck by the street car.

Plaintiff adduced testimony to the effect that a street car of the type in question, traveling 15 miles per hour, could be stopped within 35 feet, and traveling 20 miles per hour could be stopped within 50 feet.

The assignments of error raised by appellant make it unnecessary that we set out defendant's testimony.

Plaintiff's case was submitted to the jury solely upon the humanitarian doctrine.

Appellant urges here that its demurrer at the close of the case should have been sustained for the reason that plaintiff was guilty of contributory negligence as a matter of law in voluntarily placing himself in the path of the defendant's street car with a knowledge of all of the attending circumstances, and without having cause to believe that any lives were in imminent peril. The point is without merit.

Plaintiff's action is not based upon the theory of the "rescue" cases (e. g. Eversole v. R. R. Co., 249 Mo. 523, 155 S. W. 419; McManamee v. R. R. Co., 135 Mo. 440, 37 S. W. 119; Donahoe v. R. R. Co., 83 Mo. loc. cit. 563, 53 Am. Rep. 594), cases wherein a railroad company, by its own negligence, created the danger, or through its own negligence is about to strike a person in danger, a third person voluntarily exposing himself to peril, in an effort to rescue such person, has been permitted to recover for...