McGowan v. Wells

• Citation: 24 S.W.2d 633
• Decision Date: 03 February 1930
• Docket Number: No. 27620.,27620.
• Parties: CHARLES R. McGOWAN v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant.
• Court: United States State Supreme Court of Missouri

24 S.W.2d 633

CHARLES R. McGOWAN v. ROLLA WELLS, Receiver of United Railways Company of St. Louis, Appellant.

No. 27620.

Supreme Court of Missouri, Division No. 1

February 3, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

REVERSED AND REMANDED.

T.E. Francis and Ernest A. Green for appellant.

(1) Under the respondent's own evidence he was clearly guilty of contributory negligence as a matter of law, and the trial court erred in not so instructing the jury. Gubernick v. Railways Co., 217 S.W. 35; Keele v. Railways Co., 238 Mo. 62; Epstein v. Wells, 284 S.W. 845; Laun v. Railroad, 216 Mo. 580; State ex rel. v. Reynolds, 233 S.W. 222; Boyd v. Railway Co., 105 Mo. 371; Mockowik v. Railroad, 196 Mo. 550; Huggart v. Railroad, 134 Mo. 679; Kelsay v. Railway Co., 129 Mo. 374; Reno v. Railroad, 180 Mo. 469; Stotler v. Railway, 204 Mo. 619; Hutchinson v. Ry. Co., 195 Mo. 546; Voelker Products Co. v. Railways Co., 185 Mo. App. 310. (2) Plaintiff was not entitled to go to the jury under the humanitarian doctrine, for the reason that there is no testimony whatever in the record as to the distance between the street car and the plaintiff when plaintiff entered the danger zone, and, therefore, no room for the application of the humanitarian doctrine. State ex rel. v. Reynolds, 233 S.W. 223; Reno v. Railroad, 180 Mo. 488; Rowe v. Railways Co., 247 S.W. 446; Boyd v. Ry. Co., 105 Mo. 371; Mockowik v. Railroad Co., 196 Mo. 570; Keele v. Railways Co., 258 Mo. 78; Lackey v. Railways Co., 288 Mo. 143; Watson v. Railroad Co., 133 Mo. 246; Reeves v. Ry. Co., 251 Mo. 169; Beal v. Frisco, 256 S.W. 733; Nellis on Street Railroads, pp. 383-384; Cooley on Torts (2 Ed.) 812. (3) The court erred in not reprimanding plaintiff's counsel, because of improper argument made by him to the jury, and furthermore erred in refusing to discharge the jury and declare a mistrial, because of plaintiff's counsel's improper argument in telling the jury, in substance, that if plaintiff had not made a case the court would have taken the case from the jury. Kull v. Ford Motor Co., 261 S.W. 736; Neff v. City of Cameron, 213 Mo. 350, 18 L.R.A. (N.S.) 320; State ex rel. v. Claudius, 1 Mo. App. 551; Williams v. Taxicab Co., 241 S.W. 970.

Wilbur C. Schwartz and N. Murry Edwards for respondent.

(1) A case was made under the humanitarian doctrine on account of the motorman, after he saw, or could have seen, plaintiff in peril, failing to slacken the speed or stop the car and prevent the injury. Schroeder v. Wells, 310 Mo. 655; Banks v. Morris, 302 Mo. 254; State ex rel. v. Trimble (Mo.), 260 S.W. 1003; Maginnis v. Railroad, 268 Mo. 667; Hill v. Rys. Co., 289 Mo. 193; McBride v. Wells (Mo. App.), 263 S.W. 470; Hoodenpyle v. Wells (Mo. App.), 10 S.W. (2d) 331; Goggin v. Wells (Mo. App.), 249 S.W. 704. The motorman could not defer action until plaintiff actually went upon the tracks, because under the circumstances detailed the danger zone extended beyond these limits. Maginnis v. Railroad, 268 Mo. 678; State v. Trimble (Mo.), 260 S.W. 1002; Schroeder v. Wells, 310 Mo. 655; Hoodenpyle v. Wells (Mo. App.), 10 S.W. (2d) 331. (2) Plaintiff continued to cross the track when he saw the street car north of him approaching the regular stopping place where passengers were waiting. He had a right to assume that the street car was going to stop for the passengers and he was not guilty of contributory negligence as a matter of law for acting on this presumption by attempting to cross the tracks in front of the street car. Unterlachner v. Wells (Mo.), 296 S.W. 755; Lackey v. Rys. Co., 288 Mo. 120; Mason v. Rys. Co. (Mo.), 246 S.W. 323; McDonald v. Rys. Co., 211 Mo. App. 149; Goggin v. Wells (Mo. App.), 249 S.W. 704. (3) The court did not err in refusing to discharge the jury when plaintiff's counsel in reply to defendant's counsel stated that if there wasn't a question of fact to be decided by the jury it would not have been submitted to them by the court. Defendant's objection was sustained and the jury instructed to disregard the statement and plaintiff's counsel directed to confine himself to the evidence and instructions. Gerber v. Kansas City, 304 Mo. 157; Crockett v. Rys. Co. (Mo.), 243 S.W. 908; Pietzuk v. Rys. Co., 289 Mo. 135; Crowell v. Payne, 246 S.W. 312; Clark v. Powell Estate (Mo.), 208 S.W. 31.

ELLISON, C.

The plaintiff was struck by a street car operated by the defendant receiver in the city of St. Louis and sustained certain painful and some permanent injuries, chief among which was the loss of his left foot. He brought this suit for $65,000 damages, and recovered a verdict and judgment for $15,000, from which the defendant has appealed.

The negligence charged in the petition was: (1) violation of the St. Louis speed ordinance; (2) violation of the vigilant-watch oridinance; (3) common law negligence in failing to sound the street-car gong or bell; (4) violation of the humanitarian rule in failing to stop the street car or check its speed after seeing or being under duty to see the respondent in a position of imminent peril. The appellant's answer was a general denial coupled with a plea of contributory negligence in that the respondent went upon the car track after he saw and heard or should have seen and heard the street car closely approaching.

The respondent submitted his case to the jury on the humanitarian doctrine, only, abandoning the other assignments of negligence in his petition. The appellant asked a peremptory instruction at the close of the respondent's case. The court refused it. He then offered in evidence two plats of the scene of the accident which had previously been agreed to as correct, and rested, unsuccessfully renewing his demurrer to the evidence. The principle assignment of error on this appeal is directed to the refusal of the trial court to take the case from the jury. Other assignments complain of the refusal of instructions, the erroneous admission of evidence, improper argument by respondent's counsel and the size of the verdict. We have concluded respondent made a jury case, but that the argument was prejudicial.

The plaintiff was thirty-four years old when injured. He was a boiler-maker's helper, and worked with sheet metal on boilers, smoke-stacks and the like. The accident occurred near the intersection of Ninth and Sidney Streets in St. Louis about 7:30 o'clock on Saturday evening, January 17, 1925. A plat showing the scene of the accident was introduced in evidence by respondent. We reproduce it on the following page, eliminating some of the detail.

From the plat it will be seen that Sidney Street runs north-west and southeast. Ninth Street bears west of south, but there is a jog where it crosses Sidney Street; that is to say, Ninth Street enters the north side of Sidney Street at a point some distance east of where it leaves on the south side and continues on southerly.

A double-track street-car line, referred to in the evidence as the Natural Bridge line, runs south along the middle of Ninth Street until it approaches a point about one-half block north of Sidney Street. There the tracks veer to the west and run diagonally across a vacant lot and thence continue southerly along Ninth Street as it extends on south from Sidney Street. In this manner the car tracks are accommodated to the jog in the street. The east track is used by northbound cars and the west track by southbound cars. The regular stopping place for these latter is just north of the sidewalk on the north side of Sidney Street, on the vacant lot. Throughout their course across the lot the car tracks, and any street car thereon, are clearly in view of persons travelling along the sidewalk.

The distance along the street-car tracks from the point where they cross the south line of the alley on the north side of the vacant lot to the curb on the north side of Sidney

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Street, is 165 feet. The width of both Ninth and Sidney Streets between curbs is thirty-six feet. The distance from the west curb of Ninth Street westward along the sidewalk on the north side of Sidney Street to the east rail of the east street-car track is about forty-two feet. The gauge of both street-car tracks is about four feet ten inches, and the space between the two tracks is about five feet four inches. In other words, from outer rail to outer rail of the double track the whole distance is about fifteen feet, making the west rail of the west track about fifty-seven feet west of the west curb of Ninth Street and about eighty-three feet west of the east curb. There is a street lamp at the northeast corner of the intersection of Ninth and Sidney Streets and another at the southwest corner. The latter of these lamps is about sixty-seven feet from the scene of the accident and the former about ninety-seven feet.

On the occasion in question the respondent was walking west on the sidewalk on the north side of Sidney Street, intending to go to the regular stopping place for southbound street cars and there to take passage on one of said cars. As he stepped off the curb on the east side of Ninth Street he looked northward and saw a street car coming some distance away. According to his story, he continued on west walking along the sidewalk and saw two men standing at the regular street-car stopping place. As he had just reached the west rail of the west track, the street car struck him. The respondent was the only witness who testified as to the actual collision. But before setting out further his account of the accident, we would better refer to the testimony of his other witnesses who told of the movement of the street car.

Four of the witnesses who were passengers on the street car said that after it turned off of Ninth Street and headed across the vacant lot it was moving at a speed of from ten to fifteen miles per hour. The gong was not sounded. One of the passengers said the...