McConnell & Pilcher Ice & Fuel Co. v. United Rys. Co.

• Decision Date: 07 March 1922
• Docket Number: No. 16770.,16770.
• Parties: McCONNELL & PILCHER ICE & FUEL CO. v. UNITED RYS. CO. OF ST. LOUIS
• Court: Missouri Court of Appeals

238 S.W. 553

McCONNELL & PILCHER ICE & FUEL CO. v. UNITED RYS. CO. OF ST. LOUIS

No. 16770.

St. Louis Court of Appeals. Missouri.

March 7, 1922.

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

"Not to be officially published."

Action by the McConnell & Filcher Ice & Fuel Company against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.

Charles W. Bates, T. E. Francis, and E. P. Walsh, all of St. Louis, for appellant.

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

BIGGS, C.

In the early morning of November 19, 1917, but after daylight, a collision occurred between a team of horses owned by the plaintiff and one of the cars of the defendant company, which caused the death of one of the horses and injuries to the other. As a result there followed this action for property damage, which resulted in a judgment for the plaintiff in the sum of $532, from which the defendant appeals.

The negligence charged is a violation of the vigilant watch ordinance of the city of St. Louis. The answer was a general denial, coupled with a plea of contributory negligence on the part of the agent and servant of the plaintiff in charge of the team, in driving onto the track without looking or listening for approaching cars, when by so looking and listening he could have heard the approaching car in time to have remained off the track, and further in said driver going upon the track immediately in front of an approaching street car.

The defendant operates a single track line for east-bound cars in the center of Clark avenue, a public street in the city of St. Louis. The plaintiff owns a stable on the south side of Clark avenue, a short distance east of where Leffingwell intersects Clark avenue. From the stable door to defendant's track was a distance of 25 feet. At the time in question plaintiff's driver emerged from the stable door, leading the horses, which were harnessed. The driver was between the horses, near their heads, with one hand holding the bridle of one horse and the other hand holding the bridle of the other horse. He was far enough in front of the horses, so that his view of the street and car track was not obstructed. As he came out of the stable door, he looked to the west, the only direction from which a car could be expected, and saw the defendant's car approaching, 300 to 350 feet away. He thereupon walked towards the track across the sidewalk, observing the car all the time. When he arrived at the curb he then noticed that the car was slacking up for some persons who intended to become passengers and were standing on the west side of Leffingwell avenue, where that thoroughfare intersected Clark avenue from the south, and which was a point 130 feet west of the stable door; but the driver at the same time noticed that the car did not stop for the passengers, but increased its speed. What happened may best be told in the language of witness:

"Q. Now, tell the jury just what you did from the time you left the interior of that stable until the car came upon these horses and injured them. A. Well, when I left the stable, I walked out and looked up the street. I saw the car coming, and so I walked on out off of the sidewalk, and I seen the passengers step out in the street to board the car, and the car began to slack up, and then I thought that I could make it across the tracks, and I kept going, and when it had got even with the passengers he put on more speed, and when I got right up to the track, why, I looked and seen that I couldn't get across, and I aimed to snatch the team back, but the team was walking fast, and I couldn't stop them, and I jumped back myself, and the team got caught right in the middle of the track. * * * Q. When you saw that car slacking up for those people, where were you at that time? A. I was in the street...