Maloney v. United Rys. Co. of St. Louis

• Decision Date: 05 May 1914
• Docket Number: No. 13628.,13628.
• Citation: 183 Mo. App. 292,167 S.W. 471
• Parties: MALONEY v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

167 S.W. 471

183 Mo. A. 292

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

No. 13628.

St. Louis Court of Appeals. Missouri.

May 5, 1914.

Rehearing Denied May 21, 1914.

1. STREET RAILROADS (§ 93)—INJURIES TO PEDESTRIAN—EVIDENCE—NEGLIGENCE.

Evidence that a street car which struck a pedestrian at a crossing approached the crossing at a rate of 18 or 20 miles per hour, and that no warning was given, establishes a prima facie case of negligence on the part of those operating the car.

2. STREET RAILROADS (§ 117)—INJURIES TO PEDESTRIANS—EVIDENCE—CONTRIBUTORY NEGLIGENCE.

Where one who, before starting across a street car track at a muddy crossing, looked up the track from a point where she could see for 150 feet, and saw that the track was clear for that distance, but did not look again while crossing the track, and was struck by a car just before she had reached the other side, it was a question for the jury whether she was contributorily negligent in not looking after she did.

3. TRIAL (§ 156)—DEMURRER TO EVIDENCE— EFFECT AS ADMISSION.

A demurrer to the plaintiff's evidence admits the truth of the plaintiff's testimony.

4. STREET RAILROADS (§ 117)—INJURIES TO PEDESTRIANS—CONTRIBUTORY NEGLIGENCE.

Ordinary care does not require one approaching a street railway crossing to constantly look and listen until he gets across, but, if he looks and sees no car within such distance as would prevent him from crossing before one going at a lawful speed could reach the crossing, he is not negligent, as a matter of law, in attempting to cross without looking again.

5. TRIAL (§ 156)—DEMURRER TO EVIDENCE— DETERMINATION.

In determining defendant's demurrer to the evidence, the court must consider the evidence in the light most favorable to the plaintiff.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Mary Maloney against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest and R. E. Blodgett, all of St. Louis, for appellant. John J. O'Brien and McShane & Goodwin, all of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff, alleged to have been occasioned by pefendant's negligence. There was a verdict and judgment for plaintiff for the sum of $1,100, and the case is here on defendant's appeal.

Plaintiff was injured by being struck by one of defendant's street cars at the intersection of Garrison avenue and Madison street, in the city of St. Louis. Plaintiff had been a passenger on a car of defendant on what is known as the latter's "natural bridge" line, the double tracks of which extend along a portion of Garrison avenue, a street extending north and south, crossing Madison street, which extends east and west. Plaintiff alighted from a north-bound car on Garrison avenue at the north side of Madison street, and proceeded in a westerly direction across the latter street and the double tracks of defendant thereon. She had nearly succeeded in crossing both tracks when she was struck by a south-bound car upon the west track, sustaining the injuries for which she sues. She testified that after she stepped from the north-bound car the latter proceeded on its way before she attempted to cross; that she stepped from this car a few feet north of the foot crossing at this place, and walked back to the latter and proceeded to cross the tracks; that just before she entered upon the east or north-bound track she looked to the north for an approaching car on the south-bound track, and saw none. Her testimony is that, at the time she thus looked, the car from which she had alighted had proceeded far enough on its way north so that she could see along the west or south-bound track to an alley north of Madison street, which she thought was about 120 or 130 feet distant. Another witness for plaintiff testified that this alley was about 150 feet distant from this crossing. From plaintiff's testimony it appears that she did nor look again after entering upon the tracks.

On behalf of plaintiff a Mrs. Ralls testified that she was walking south on Garrison avenue at the time of the accident, and that the car which struck plaintiff passed her when she was about 10 feet north of the alley above mentioned. This witness testified on direct examination that in her judgment the rate of speed of the car as it passed her was between 18 and 20 miles per hour; that there was no bell or gong sounded in approaching the crossing; and that, after striking plaintiff, the car ran across Madison street, a distance of about 50 feet. On cross-examination, she stated that she "could be positive that the car was running over 12 or 14 miles per hour."

The foregoing is the substance of the testimony for plaintiff, with the exception of that of a physician. At the close of plaintiff's case defendant requested a...