Mertens v. St. Louis Transit Co.

• Decision Date: 11 December 1906
• Citation: 122 Mo. App. 304,99 S.W. 512
• Parties: MERTENS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

99 S.W. 512

122 Mo. App. 304

MERTENS v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

Rehearing Denied February 5, 1907.

1. STREET RAILROADS—COLLISION WITH TEAM —CONTRIBUTORY NEGLIGENCE—EVIDENCE.

Testimony of plaintiff, who was driving on the right side of the street, that, on account of iron pipes lying in the gutter, he was obliged to drive so near the street car track as to be in the way of any passing car, but that, when he heard and saw the car coming 150 feet behind him, he immediately turned his horses out from the track, and in a moment's more time would have been out of the way, does not show contributory negligence.

2. SAME—NEGLIGENCE—EVIDENCE.

Evidence, in an action for collision of a street car with an unloaded lumber wagon, coupled up short, so that the coupling pole, which alone was struck, projected 10 or 12 feet to the rear, the accident occurring at night, when it was dark and somewhat misty, but opposite a Welsbach gas light, with one 75 or 80 feet distant in either direction along the road, the car having a headlight, and the horses being large and white or gray, held sufficient to show negligence of the motorman.

3. SAME—NEGLIGENCE—INSTRUCTIONS.

The instruction in an action for collision of a electric street car with a team, requiring that the motorman should have kept a vigilant watch for vehicles, is proper, not only under the "Vigilant Watch" ordinance of the city of St. Louis, but under the common law.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Christ Mertens against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Boyle & Priest, for appellant. W. L. Bohnekamp and R. I. Shackelford, for respondent.

BLAND, P. J.

On December 2, 1902, between 7 and 8 o'clock in the evening, plaintiff's wagon, which he was driving east on Natural Bridge Road, in the city of St. Louis, was struck in the rear by one of defendant's street cars, traveling in the same direction, causing injuries to plaintiff and damaging his wagon. The action was to recover for plaintiff's personal injuries and for the damage to his wagon. The negligence alleged and relied on at the trial was the failure of the motorman in charge of the car to exercise ordinary care in the management and operation of the car, and a violation of what is commonly called, the "Vigilant Watch Ordinance" of the city of St. Louis. The answer was a general denial, and an affirmative allegation that "plaintiff's damages, if any, were caused by his own negligence in unnecessarily driving on and remaining on, or dangerously near, defendant's track after dark with an unlighted wagon." The affirmative defense was put in issue by a reply. The trial resulted in a verdict and judgment in plaintiff's favor for $3,500, from which defendant duly appealed.

The collision occurred about 75 or 80 feet east of the west line of the baseball park and the old fair grounds, where the grounds on either side of the street are inclosed by high board fences. Plaintiff had delivered a load of lumber at the Lucas farm, in St. Louis county, and was returning to his home in the city over Natural Bridge Road. After unloading the lumber, plaintiff coupled his wagon up short so the coupling pole projected 10 or 12 feet to the rear. The wagon was drawn by two large white or gray horses, and plaintiff sat on the hounds to ride and drive, there being no bed on the wagon. The evidence shows the street was muddy, and there was no gutter on the south side, except a plank one which had been put in by the baseball association. The space between the south track and this wooden gutter was about eight feet. Plaintiff testified that he heard "car bells ringing," looked back and saw the car that collided with his wagon, about 150 feet west of him; that he had turned near the track on account of some iron sewer pipe lying in the gutter, and, when he saw the car, realizing that it would strike his wagon, if he did not pull away from the track, he pulled his team to the south and hurried them up to get out of the way of the car, but before he could get far enough from the track the car struck the end of the coupling pole, breaking it off, hurling him into the street, and burying him in the mud, resulting in severe, and, according to the expert evidence, permanent injuries to his head and one knee. Plaintiff also testified that for a moment he was rendered unconscious by the fall; that he was not driving on the track and had not been on the track, but was forced to drive near it on account of the iron pipes in the gutter. According to the evidence of witnesses introduced by plaintiff, and also that of defendant's witnesses, the situation right after the collision was this: the horses were at the gutter on the south side of the street, the front wheels of the wagon were south of the track, the right hind wheel was flat on the track, the left one in the air, and plaintiff was lying in the center of the track. It had been raining during the day and was cloudy, a mist was in the air, and it was dark, not extremely dark, but much darker than it would have been had the heavens been clear and the air free of mist. There were Welsbach gas lights burning along the street, one about 75 or 80 feet west, one opposite the place of the accident, and others east at intervals of 75 or 80 feet. John Homfeldt, a saloonkeeper living 200 feet west of the scene, on the Natural Bridge Road, testified he heard the noise of the collision, ran out, and saw the wagon, and went to the scene; that the car was brilliantly lighted and he was enabled to see the wagon by the combined light from the car and the street lamp, but that he could not have seen it but for the street lamp. Another disinterested witness, who was close by and on the scene in a moment after the collision, testified that, while the night was dark and one would perhaps not be able to make out what an object was, the bulk of a wagon and team could have been seen 100 feet west of the place of the accident, by aid of the street lamp. The car was not only brilliantly lighted, but had a headlight. An experienced motorman testified that a headlight would throw light from 30 to 40 feet ahead of the car, and that a car running at a speed of six or seven miles an hour could be stopped in 35 or 40 feet. The conductor and motorman testified the car was running at a speed of about six or seven miles an hour. The motorman testified the headlight did not enable him to see more than 20 or 25 feet ahead of the car. Both the motorman and conductor testified the bell was sounded...