Mertens v. St. Louis Transit Co.
| Decision Date | 11 December 1906 |
| Citation | 99 S.W. 512,122 Mo.App. 304 |
| Parties | MERTENS, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. John W McElhinney, Judge.
AFFIRMED.
Judgment affirmed.
George T. Priest for appellant; Boyle & Priest, George W. Easley and E. T. Miller of counsel.
The court erred in overruling defendant's demurrer to the evidence, when the evidence fails to show any negligence on the part of defendant, or when plaintiff's evidence conclusively shows that his own negligence directly contributed to his injuries, the demurrer to the evidence must be sustained. McGauley v. Transit Co., 179 Mo 583; Theobald v. Transit Co., 191 Mo. 354; Roenfeldt v. Railroad, 180 Mo. 554; Reno v Railroad, 180 Mo. 469; Markowitz v. Railroad, 186 Mo. 350; Engleking v. Railroad, 187 Mo. 164; Zumault v. Railroad, 175 Mo. 288; Cicardi v. Transit Co., 108 Mo.App. 462.
William L. Bohnenkamp for respondent.
Under the decisions of this court and the Supreme Court, both old and recent, it was the duty of defendant's motorman to avoid the accident by stopping or slackening the speed of the car, to give plaintiff an opportunity to get out of the way. Schaub v. Transit Co., 112 Mo.App. 529; DeGel v. Transit Co., 101 Mo.App. 56; Klockenbrink v. Railroad, 172 Mo. 678; Schafstette v. Railroad, 170 Mo. 142; Scullin v. Railroad, 184 Mo. 691; Conrad Grocer Co. v. Railroad, 89 Mo.App. 391; Rapp v. Transit Co., 88 S.W. 865; Murphy v. Transit Co., 189 Mo. 42.
--On December 2, 1902, between seven and eight 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 a 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 thirty-five hundred dollars, from which defendant duly appealed.
The collision occurred about seventy-five or eighty 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 ten or twelve 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 one hundred and fifty 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 seventy-five or eighty feet west, one opposite the place of the accident and others east at intervals of seventy-five or eighty feet.
John Homfeldt, a saloon-keeper, living two hundred 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 one hundred 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 thirty to forty feet ahead of the car, and that a car running at a speed of six or seven miles an hour could be stopped in thirty-five or forty 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 twenty or twenty-five feet ahead of the car. Both the motorman and conductor testified the bell was sounded continuously on account of the darkness, and the motorman said he was keeping a sharp lookout ahead, but did not see the wagon until the car was within fifteen or twenty feet of it; that he immediately reversed the power and did all he could to stop the car to prevent a collision. The evidence shows the car stopped immediately after striking the coupling pole of the wagon. The motorman also testified the wagon was in the middle of the track. Plaintiff testified the car was running at a speed of fifteen miles per hour, but his examination shows that he came to this conclusion from having previously seen cars running on this road and not from any estimate he made, or could have made, under the circumstances, as to the speed of this particular car.
The vigilant watch ordinance was read in evidence by plaintiff. Defendant offered an instruction in the nature of a demurrer to the evidence. The refusal to grant this request is assigned as error. It is insisted that plaintiff's own evidence shows he was guilty of negligence which directly contributed to his injury. We have failed to find such evidence in the record. Plaintiff's testimony was that he heard the car bell, looked west and saw the car coming toward him, one hundred and fifty feet away; that he immediately turned his horses out from the track to avoid the car and if he had been given a moment's more time he would have been out of the way. Plaintiff was on the proper side of the street and testified that on account of the iron pipes lying in the gutter he was forced to...
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