McGauley v. St. Louis Transit Company

• Citation: 79 S.W. 461,179 Mo. 583
• Parties: McGAULEY v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 10 February 1904
• Court: United States State Supreme Court of Missouri

79 S.W. 461

179 Mo. 583

McGAULEY v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

February 10, 1904

Appeal from St. Louis City Circuit Court. -- Hon. O'Neill Ryan Judge.

Reversed and remanded (with directions).

Boyle Priest & Lehmann and George W. Easley for appellant.

(1) There was no evidence of negligence upon the part of defendant's employees. There was no reliable evidence that the rate of speed was excessive. Guyer v Railroad, 73 S.W. 584. The motorman could not see the pole extending behind the wagon. No causal relation is shown between the alleged defect in the brake and the injury. Going down the grade the car could not have been stopped with any kind of brake, after the plaintiff came into the view of the motorman. (2) Plaintiff was guilty of such contributory negligence as defeats his recovery. He drove in the car tracks a distance of three blocks, without ever looking or listening for the approach of cars behind him, well knowing that cars were operated in that direction over that track, when, if he had looked or listened, he could have seen or heard the approach of the car in plenty of time to have turned out to the right, on to a well macadamized street. His failure to do so was negligence. His wagon was not struck. It was the pole, extending ten feet to the rear of the wheels, which came in collision with the car, and which could not be readily seen by the motorman. The demurrer to plaintiff's evidence should have been sustained. Moore v. Railroad, 75 S.W. 676; Everett v. Los Angeles, etc. Co., 43 P. 208.

Kinealy & Kinealy for respondent.

(1) The theory of the case presented to the jury by appellant's instructions 1 and 2, was that although defendant's car was coming up behind the wagon driven by plaintiff without signal, warning, bell ringing, or sufficient light to enable the motorman to see the car sufficiently far ahead to take timely steps to stop his car, and although the car was practically uncontrollable on a down grade because of the bad condition of the braking apparatus, yet plaintiff could not recover unless he had kept a constant watch behind him, while driving his wagon, so that he could see the coming car in time to enable it "to pass without being delayed" or, as it was put in instruction 2 for defendant: Plaintiff could not recover if he "did not keep such a reasonably careful lookout and thereby did not see defendant's car until it was too late for him to turn out of the track and avoid collision with it, and that defendant's motorman, on account of the darkness" (which defendant could have remedied by doing its duty in providing a sufficient headlight) "did not see plaintiff and his vehicle on the track in time to stop his car in order to avoid a collision." There was ample evidence admitted without objection that defendant's headlight was dim, and this, undoubtedly, "was material to the main issue whether defendant did all it could to avoid the injury after its motorman discovered or ought to have discovered plaintiff on its track." Klockenbrink v. Railroad, 72 S.W. 904. In effect these instructions tell the jury that no matter how defective was the apparatus for stopping the car, no matter if the car was uncontrollable because of those defects, no matter if the motorman ran ahead at an inordinate speed without warning or signal, no matter how utterly reckless or careless he may have been, if plaintiff failed to keep watch behind while driving ahead on a dark night so as to be able to turn out in time to avoid the racing, broken-down car under such reckless management or incapable of being controlled, this failure of the plaintiff was the proximate cause of every damage that was done by the car and plaintiff can not recover. (2) No warning having been given or bell rung on defendant's car to indicate its approach, plaintiff had a right to assume that no car was coming behind him. Donahue v. Railroad, 91 Mo. 357. (3) The short space of a block, which was the distance at which, on the uncontradicted evidence, the plaintiff in this case could have seen defendant's coming car, would have been traversed, the car running at fifteen miles per hour, in 15 1-2 seconds, and the plaintiff was driving in the darkness, no light ahead. To require him, under the circumstances, to keep watch backwards for the car and forward for dangers in an unlighted road would practically be to require him "to look both ways at once," which this court declares he could not be expected to do. Dickson v. Railroad, 104 Mo. 104; Chappell v. Allen, 38 Mo. 221; Rose v. Spies, 44 Mo. 23; Spohn v. Railroad, 87 Mo. 74. The gravest error in those instructions, however, is in denying a right of recovery to plaintiff in case he was found to have failed to keep a lookout for the car coming up behind, though defendant might have been guilty of the negligence charged. This is directly contrary to the decisions of this court in the cases of Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 72 S.W. 900.

OPINION

VALLIANT, J.

A wagon, being driven by plaintiff in the track of defendant's street railroad, was struck and turned over by a street car, the plaintiff was thrown out and injured, and brings this suit for damages. The trial resulted in a verdict for the defendant, the court sustained the plaintiff's motion for a new trial and the defendant appeals.

The petition states that the plaintiff was driving south in the railroad track after dark when a car of defendant going in the same direction struck the rear end of the coupling pole of the wagon, turned the wagon over and threw the plaintiff out, in consequence of which he was severely injured; that the motorman in charge of the car failed to ring a bell or give any signal of his approach or to stop the car or to take timely steps to stop it, "and that this failure was also due to the bad condition, bad repair and insufficiency of the car, of the brake, chain, shoe-chain, cogwheels and other brake apparatus." The answer was a general denial and a plea of contributory negligence.

The plaintiff's evidence tended to show as follows:

The accident occurred in the northern suburbs near Calvary cemetery. It was after dark and there were no street lights. It was a wagon designed for hauling lumber, it had no bed, it had a long coupling pole which extended ten or twelve feet behind the hind wheels. Plaintiff had discharged a load of lumber near the cemetery and was returning to the city. When he reached the gate at the cemetery he drove into the railroad track and followed it for a distance of about three blocks to the point of the accident. It was the west track, upon which south-bound cars run. The grade is downward from the point at which plaintiff entered the track to the point at which the collision occurred. There are no cross-streets in that vicinity. The car came down the grade at a rapid speed, the plaintiff hearing the noise of the running car looked back and seeing the danger, immediately attempted to pull out of the track, but before his wagon got clear the dash board of the car struck the projecting end of the coupling pole with such force that the wagon was turned over and the plaintiff was thrown out and injured. The point of contact between the dash board and the end of the coupling pole was a little to the west of the center of the dash board.

The plaintiff testified: "I heard a noise behind me, and then I looked back and the car was right upon me and I swung out of the track as quick as I could, and the car caught the coupling pole and turned the wagon over and knocked me out; I didn't know just what happened right after that." He further testified that he kept in the track all the way from the gate of the cemetery to the point of collision, and that he did not look back at all until he heard the car immediately behind him. "Q. After you had started down the street, did you look back at any time to see if the car was coming? A. No, sir, not until I heard this noise. Q. Not until you heard the car and then it was immediately behind you? A. Yes, sir. . . . Q. When you looked back how far was that car behind you? A. As close as I could judge about twenty-five or thirty feet."

The motorman, who was plaintiff's witness, said: "In regard to the collision -- well I left the north end of the route at Calvary, coasting down the grade after starting. I do not know just what distance it would be -- when the wagon probably went a quarter, something like that, I seen the wagon probably ten or twelve steps, not more than ten steps and it was then in darkness. . . . Q. Did you give any...