McGahan v. St. Louis Transit Co.

• Decision Date: 05 March 1907
• Citation: 100 S.W. 601,201 Mo. 500
• Parties: McGAHAN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

100 S.W. 601

201 Mo. 500

McGAHAN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri. Division No. 2.

March 5, 1907.

1. MASTER AND SERVANT—INJURY TO SERVANT —CONTRIBUTORY NEGLIGENCE.

Where, in an action for the death of a motorman operating a car in a collision between his car and another car, the evidence showed that the deceased motorman could have seen the track for more than 700 feet from a designated point, and that the accident occurred about 150 feet therefrom, the presumption of due care on his part is overcome, and his contributory negligence established.

2. SAME—NEGLIGENCE—PROXIMATE CAUSE.

In an action against a street railroad for the death of a motorman in a collision with another car, based on the negligence of the railroad in commanding the motorman to make the run within a specified time, it appeared that the car was on time when the collision occurred, and was at that time running at the ordinary rate of from five to six miles an hour. Held, that the negligence, if any, on the part of the railroad in fixing the schedule for the running of the car, was not the cause of the accident.

3. SAME—CARE REQUIRED OF EMPLOYÉ.

A motorman operating a car on a single track is not relieved from the duty of exercising care in avoiding danger from a collision with another car operated on the same track and running in the opposite direction, irrespective of the question of the order the railroad gave to the motorman with respect to the running time of his car.

4. SAME—NEGLIGENCE—EVIDENCE.

In an action against a street railroad for the death of a motorman in a collision with another car operated on the same track and running in the opposite direction, evidence examined, and held not to show negligence on the part of the railroad arising from its failure to give the motorman warning of the other car, or in failing to provide a rule by which the motorman would know of the presence of the other car.

5. SAME.

An action against a street railroad for the death of a motorman in a collision with another car operated on the same track and running in the opposite direction, occurring shortly after the latter car had left the end of the line, based on the company's negligence in commanding the motorman to make his run within a specified time, and in failing to give him warning of the other car or to provide any rule by which he would know of the presence of the other car, cannot be sustained on the ground that the railroad negligently spaced the two cars that collided, for a uniform spacing of street cars is impracticable.

Appeal from St. Louis Circuit Court; Jas. R. Kinealy, Judge.

Action by Sarah A. McGahan against the St. Louis Transit Company. From a judgment for defendant, plaintiff appeals. Affirmed.

A. R. Taylor, for appellant. Boyle & Priest and Glendy B. Arnold, for respondent.

BURGESS, J.

Plaintiff, the widow of James McGahan, deceased, sues to recover of the defendant damages in the sum of $5,000, under sections 2865 and 2866, Rev. St. 1899 [Ann. St. 1906, pp. 1644, 1646], for the killing of her husband by reason of the negligence of the servants and employés of the defendant.

The petition, after alleging that plaintiff was the lawful wife of James McGahan at the time of his death, and that defendant was a corporation and a common carrier of passengers, and that her husband was on the 10th day of November, 1901, a motorman on defendant's extra car running from Third street and Washington avenue, in the city of St. Louis, to the connection of the branch of said railway with another line running west from Forsythe Junction into St. Louis county, and that that part of defendant's line from the city limits to its western terminus and connection with the line of railway running from Forsythe Junction into the county was a single track, and that her husband and defendant's conductor in charge of said extra car were ordered by defendant's officers to run said car from Third street and Washington avenue to the western terminus of said line in 45 minutes, charges: (1) That defendant's officers and agents negligently commanded plaintiff's husband, the motorman, and the said conductor in charge of said extra car, to make said run in 45 minutes; (2) and negligently failed to give them any notice or warning that another of defendant's cars was then on said single-track branch of said road; and (3) negligently failed to provide any rule or warning by which plaintiff's husband and said conductor would know of the presence of said other car on said single-track branch of said road, and that in consequence of such negligence the car on which plaintiff's husband was motorman was caused to collide, on said branch track of said railway, about 250 feet from the terminus thereof, with another of defendant's cars running in an opposite direction thereon, whereby plaintiff's husband was so injured as the result of said collision that he died on the 13th day of November, 1901. Defendant's answer, after the general denial, charged the following matter as a defense to plaintiff's petition: "Further answering defendant states that the injuries, if any, alleged in plaintiff's petition to have caused the death of James McGahan, were caused: (1) By the negligence of James McGahan, in this: (a) that in violation of his instructions, and in violation of his duty to use ordinary care, he failed and neglected to wait on a switch constructed and provided for that purpose for the south-bound car, with which the car operated by said McGahan collided; (b) that he so carelessly and negligently operated his car as to bring it into collision with a car proceeding in the opposite direction on the same track. (2) By the negligence of the fellow servants of said McGahan, to wit, the motorman and conductor of the car with which the car operated by McGahan collided, and the conductor of McGahan's car, who so carelessly and negligently operated the cars in their general control as to bring them into a collision." At the close of the plaintiff's evidence the defendant interposed a demurrer thereto, which was sustained, whereupon plaintiff took a nonsuit with leave to move to set the same aside, and within four days next thereafter filed her motion to set aside the nonsuit, which was overruled by the court, to which plaintiff duly excepted. Judgment was then rendered for defendant, and against the plaintiff for costs.

The salient facts are about as follows: The plaintiff's husband was, on the 10th day of November, 1901, in the service of the St. Louis Transit Company, a street railway company, engaged in carrying passengers in the city of St. Louis, as an extra motorman. On Sunday, November, 10, 1901, the plaintiff's husband and the conductor of one of said company's cars were ordered to take out a car to be run on the tracks of the company between the terminus, Third and Washington avenue, and the junction...