Meng v. St. Louis & Suburban Railway Company
| Decision Date | 13 December 1904 |
| Citation | 84 S.W. 213,108 Mo.App. 553 |
| Parties | MENG, Respondent, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William Zachritz Judge.
The petition herein declared upon common-law negligence in general terms thus specified:
"The agents and servants of defendant, managing its said cars operated upon said track, then and there so carelessly negligently and unskillfully conducted themselves that a certain motor car, then and there in charge of said agents and servants of defendant, was caused to strike the buggy in which plaintiff was driving, with great force and violence and carrying the same, together with the horse and plaintiff, forward forty-five or fifty feet, breaking, crushing and completely destroying the buggy and the harness, maiming and wounding the horse so that thereafter he died, and throwing plaintiff with great force from his said buggy to the ground, thereby severely bruising and wounding him upon the head, body, back, arms and legs, and shocking his nervous system from which wounds, bruises, contusions and shock he suffered great bodily pain and mental anguish, and still suffers such bodily pain and mental anguish, and was permanently injured."
The defense embraced a general denial united with a plea of contributory negligence which in turn was denied by the reply.
Pendleton avenue, sixty feet in width a public highway traversing the western portion of the city of St. Louis in northern and southern directions, is intersected by the defendant's private right-of-way sixty-four feet between the building lines, upon which, on September 11, 1901, it was operating street cars by electric power at a speed authorized in that district of the city by municipal ordinance at a maximum rate of twenty miles per hour. Between eight and nine o'clock in the forenoon of the day designated, which was bright and clear, plaintiff, a physician and surgeon of middle age, approached defendant's tracks from the south in a single-horse top buggy until the animal's head was within a short distance (about four feet), of the southern track, when he drew up to permit the passage of an east-bound supply or baggage car; knowing from experience that such cars were frequently followed by passenger cars, and as the cover of his vehicle extended far in front, he leaned forward, looking westwardly, as soon as the east-bound car had gone by, and perceiving no car drawing near from that direction, having also looked eastward and listened for a car on the farther or northern track, upon which the west-bound cars traveled, he started to drive over both tracks at a speed of four miles per hour. The gauge of the tracks was four feet ten inches, the space separating them, six feet one inch, and plaintiff was driving about the center of the street. The supply car had passed thirty feet or more beyond him when he started across, and the horse had passed the west-bound track, when the buggy was struck about the middle by a car moving westwardly at a rapid rate of speed and carried a considerable distance before the motorman stopped it, to the destruction of the vehicle and animal, and the serious personal injury of the plaintiff. The testimony of plaintiff that no gong or signal was sounded from the approaching car, was corroborated by several witnesses, passengers in the car, and a spectator at the scene of the accident, but defendant's testimony was as positive to the contrary. The motorman of the colliding car testified that the baggage car had gone by, when he saw the plaintiff, and his car was then about twenty or thirty feet east of Pendleton avenue, but the conductor of the baggage car deposed that the latter car met the passenger car forty to sixty feet beyond the street.
There was much discrepancy in the testimony respecting the rate of speed at which the car was being propelled, plaintiff's witnesses estimating it as exceeding the rapid limit determined by ordinance, but defendant's testimony was to the effect that no unlawful speed was employed or even could have been attained by such car. The directions to the jury were made up of a comprehensive series of instructions which will be presently considered in detail so far as deemed essential. The jury returned a verdict for plaintiff in a substantial sum and defendant has appealed.
Judgment affirmed.
Dawson & Garvin and Leonard Wilcox for appellant.
(1) The instructions for nonsuit ought to have been given. Moore v. Railway, 176 Mo. 544, 75 S.W. 672; Guyer v. Railway, 174 Mo. 351, 73 S.W. 584; Gettys v. Railway, 78 S.W. 82; Guiney v. Railway, 167 Mo. 595, 605, 67 S.W. 296; Petty v. Railway, 179 Mo. 666; Van Bach v. Railway, 171 Mo. 338, 71 S.W. 358; Reno v. Railway, 180 Mo. 469; Maxey v. Railroad, 113 Mo. 1, 20 S.W. 654; Feary v. Railway, 162 Mo. 105, 62 S.W. 452; Cogan v. Railway, 73 S.W. 740; Schmitt v. Railway, 160 Mo. 53, 54, 60 S.W. 1043; Payne v. Railway, 129 Mo. 420, 31 S.W. 885; and other cases cited in argument. (2) Neither the pleadings nor the evidence warranted the submission of the cause to the jury on the humanitarian theory. Therefore instruction 3 was error. Davies v. Railway, 159 Mo. 1, 59 S.W. 982; Hanselman v. Railway, 88 Mo.App. 123; Ledwidge v. Railway, 73 S.W. 1008; Booth on St. Rys., sec. 303; Rider v. Railway, 171 N.Y. 152; and other cases cited in argument. (3) It was error to give instructions 1 and 4. Kelsay v. Railway, 129 Mo. 362, 30 S.W. 339; Hook v. Railway, 162 Mo. 582, 63 S.W. 360; Vogg v. Railway, 138 Mo. 172, 36 S.W. 646. (4) Also to give instruction 2. State v. Rutherford, 152 Mo. 130, 53 S.W. 417; Judd v. Railway, 23 Mo.App. 62; McFadin v. Catron, 120 Mo. 274, 25 S.W. 506. (5) It was error to refuse instructions 2 and 3 of the refused instructions, and also number 4. Vandewater v. Railway, 135 N.Y. 588. (6) It was error to admit the vigilant watch ordinance in evidence. Gebhardt v. Transit Co., 97 Mo.App. 381, 71 S.W. 448; Sepetowski v. Transit Co., 76 S.W. 696.
Seneca N. & S. C. Taylor and Thomas S. Meng for respondent.
(1) An electric street railway company operating dangerous machinery at a rapid speed in a populous city, is bound to know that vehicles and pedestrians have an equal right to the use of street crossings; therefore it is the duty of the motorman to be on the lookout, and to take all reasonable measures to avoid injuring such persons passing over the track at a street crossing, and failure to do so is negligence. Pope v. Railway, 99 Mo. 405, 12 S.W. 891; Senn v Railway, 108 Mo. 142, 18 S.W. 1007; Henry v. Railway, 113 Mo. 525, 21 S.W. 214; Sweeny v. Railway, 150 Mo. 385, 51 S.W. 682; Schafstette v. Railway, 175 Mo. 152, 74 S.W. 826; Riska v. Railway, 180 Mo. 168. (2) When the motorman discovers a horse entering upon a railroad track drawing a vehicle, a short distance ahead of his car upon a street crossing, it is his duty to have the power by which he propels the car under his control so as to avoid a collision, if by reasonable care he can do so, and failure of this duty is negligence. Oates v. Railway, 168 Mo. 544, 68 S.W. 906; Klockenbrink v. Railway, 172 Mo. 678, 72 S.W. 900; Hutchinson v. Railway, 88 Mo.App. 383; Grocery Co. v. Railway, 89 Mo.App. 391; Robinson v. Railway, 112 F. 484. (3) If it was negligence on the part of plaintiff (which we positively deny), in driving across defendant's track, on the occasion in question, still it was the duty of the motorman after seeing him in danger, or if by the exercise of ordinary care he could have seen him in danger in time to have prevented the collision, to have averted it, if it could be done by the exercise of ordinary care, and failure to do so would be negligence. Morrissey v. Ferry Co., 43 Mo. 384; Brown v. Railroad, 50 Mo. 466; Meyers v. Railway, 59 Mo. 231; Matthews v. Grain Elev. Co., 59 Mo. 478; Harland v. Railway, 60 Mo. 25; Werner v. Railway, 81 Mo. 368; Bergman v. Railway, 88 Mo. 685; Dunkman v. Railway, 95 Mo. 244, 4 S.W. 670; Jennings v. Railway, 99 Mo. 394, 11 S.W. 999; Morgan v. Railway, 159 Mo. 262, 60 S.W. 195; Holden v. Railway, 177 Mo. 456; Meeker v. Railway, 178 Mo. 173; Jett and Jett v. Railway, 178 Mo. 664; O'Keefe v. Railway, 81 Mo. 386; McAndrew v. Railway, 88 Mo. 100; Meyers v. Transit Co., 99 Mo.App. 371, 73 S.W. 379; Dairy Co. v. Transit Co., 98 Mo.App. 20, 71 S.W. 726. (4) Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact to be settled by a jury, and this, whether the uncertainty is raised by conflict in the testimony, or because of the facts being undisputed, fair-minded men may draw different conclusions from them. Sioux City v. Stout, 84 U.S. 657; Railway v. McDane, 135 U.S. 554; Railroad v. Converse, 139 U.S. 469; Railroad v. Ives, 144 U.S. 408; Railroad v. Powers, 149 U.S. 43; Railroad v. Griffiths, 159 U.S. 603; Railroad v. Gentry, 163 U.S. 353; Warner v. Railroad, 168 U.S. 348. (5) Plaintiff had the right to assume that the motorman would have his car under control, as was his duty to do, so as to avoid a collision with a vehicle. Gratiot v. Railway, 116 Mo. 451, 464, 21 S.W. 1094; Richards v. Railroad, 49 S.W. 419; Cooper v. Railroad, 8 Amer. Neg. 454. (6) Plaintiff had the right to assume that the motorman would not disregard any duty imposed upon him by law, or by the rules of the company as to sound the gong as the car approached the street crossing. Weller v. Railway, 164 Mo. 180, 199, 64 S.W. 141; Sullivan v. Railroad, 117 Mo. 221, 23 S.W. 149; Kenney v. Railroad, 105 Mo. 270, 15 S.W. 983, 16 S.W. 873; Kelly v. Railroad, 101 Mo. 67; Eswin v. Railroad, 96 Mo. 290, 9 S.W. 577; Petty v. Railroad, 15 Mo. 318. (7) Where an action is based on...
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