McBride v. Wells

• Decision Date: 06 June 1924
• Docket Number: No. 18583.,18583.
• Citation: 263 S.W. 469
• Parties: McBRIDE v. WELLS.
• Court: Missouri Court of Appeals

263 S.W. 469

McBRIDE v. WELLS.

No. 18583.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

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

"Not to be officially published."

Action by Patrick McBride 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, and G. T. Priest, all of St. Louis, for appellant.

John A. Witthaus, of St. Louis, for respondent.

NIPPER, C.

This is an action for damages for personal injuries sustained by plaintiff when he was struck by one of defendant's street cars being operated over the Market street line near the western city limits of St. Louis.

There were several assignments of negligence in the petition, but the case went to the jury upon only one assignment; namely, the humanitarian doctrine. It therefore becomes unnecessary to discuss the other assignments of negligence set out in the petition.

The assignment in the petition authorizing the submission of the case to the jury under the humanitarian doctrine alleges that the agents and servants in charge of said street car saw, or by the exercise of ordinary care could have seen plaintiff crossing the street car tracks of defendant, in a position of imminent peril and oblivious to his danger, in time thereafter, by the exercise of ordinary care, with the means at hand, and with safety to themselves and the other occupants and passengers on said street car, to have stopped the same or have sounded the gong or bell and avoided injuring plaintiff, but negligently and carelessly failed to do so.

The answer of defendant was a general denial, coupled with a plea of contributory negligence. The reply was a general denial. The defendant offered no evidence, but stood upon its demurrer offered at the close of the plaintiff's case.

From the evidence offered on behalf of plaintiff it appears that on the 27th day of November, 1921, he was a night watchman at a place called Hi-Pointe, in St. Louis county, just outside of the western city limits of St. Louis. The Market street car line, consisting of a double set of tracks running east and west, serves this particular section of the city. At the place where this accident happened there is a station or stopping place for street cars known as the Blendon stop. The platform of rocks or cinders on the south side of the tracks is used by passengers boarding the east-bound cars, and the one on the north side of the track is used by passengers in boarding the west-bound cars. In the evening or afternoon prior to this accident plaintiff was called by a Mr. Epstein, who lived in that part of the city, and informed by him that he wanted to board a street car that night, and wanted plaintiff, who was the night watchman in that community, to call for him and accompany him to the street car line. Plaintiff called at the residence of Mr. Epstein and accompanied him from his residence to the Blendon stop or station where Epstein wished to board an east-bound street car. This was about 11 o'clock at night of the day in question. After waiting there a short time, an east-bound car arrived on the south tracks, and plaintiff helped Epstein upon the car, which started to move eastwardly. Plaintiff was standing about 3 feet. south of the east-bound street car tracks, and stood in that position until the east-bound car had gone about 30 feet. Mr. Epstein, who was on the car going east, after it had moved the distance above stated, turned and waved "good-by" to plaintiff. About 15 feet west of this point there is a concrete pole erected between the two street car tracks, and on the top of this pole there is a cluster of lights above the trolley wires. When plaintiff had waved good-by to Mr. Epstein, he started north across the two tracks. The crossing was rough, and plaintiff started walking north, picking his way over the rough crossing. He looked neither east nor west, but was looking down on account of the rough and rocky way in front of him. When he had gone about 15 feet he was struck by the west-bound street car. He did not see the car until it was about a foot or a foot and a half away from him. He was then about one step from the north rail of the west-bound track. He made an effort to get out of the way, but was unable to do so. The car which struck him gave no warning signal of any kind before plaintiff was struck.

Immediately prior to the time this street car struck plaintiff it was traveling at a rate of speed fixed by some witnesses at 20 miles an hour, and others at 10 or 12 miles per hour. The front end of the west-bound street car which struck plaintiff passed the rear end of the east-bound street car about 40 feet east of where plaintiff was struck, according to the testimony of one witness, and about 60 feet east according to the testimony of another witness. There was sufficient light to see people at the car stop on either side of the tracks. Some witnesses said plaintiff was walking, and others said he was running as he was attempting to cross these tracks. There was some rain falling at the time, and had been for some time prior thereto. The evidence discloses that this street car, at the time and place and under the cirumstances in question, if going at 20 miles an hour could have been stopped within 50 feet, and, if going at 10 miles an hour,...