Meyer v. Lindell Ry. Co.

• Decision Date: 14 May 1878
• Citation: 6 Mo.App. 27
• Parties: CHRISTIAN H. MEYER, Respondent, v. LINDELL RAILWAY COMPANY, Appellant.
• Court: Missouri Court of Appeals

6 Mo.App. 27

CHRISTIAN H. MEYER, Respondent,

v.LINDELL RAILWAY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

May 14, 1878.

1. In an action for damages for injuries sustained by being run over by a streetcar, where it appears that plaintiff was guilty of negligence directly contributing to the accident, he must show that the injury could have been avoided if defendant had exercised ordinary care.

2. Where there has been mutual negligence, the negligence of each being the proximate cause of the injury, there can be no recovery.

3. A driver is not bound to regulate his speed at such a rate as may be necessary to avoid harm to persons crossing the road in an unreasonable and improper manner. It is as much the duty of persons crossing the street on foot to look out for vehicles as it is the duty of the driver to look out for those crossing the street.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

JAMES TAUSSIG, for appellant.

HITCHCOCK, LUBKE & PLAYER and T. G. C. DAVIS, for respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages for injuries to plaintiff caused by the negligence of the driver of one of the streetcars of defendant, which was a common carrier for hire, having railroad tracks and a line of street-cars in the city of St. Louis. There was a verdict and judgment for plaintiff from which defendant appeals.

The accident happened about half-past five o'clock on the afternoon of November 9th. It was getting dusk, but the lamps in the street were not yet lit, and one could see plainly a considerable distance. Plaintiff was lame, the left leg being shorter than the other, in consequence of a scrofulous affection of the hip-joint, with which he had been attacked when a boy. He walked with a stick, was about fifty-five years old, and his general health had been good, with the exception mentioned, up to the time of the accident.

His testimony as to the circumstances under which he was hurt is: That he resided on Chouteau Avenue, on which street defendant had two parallel tracks, his house being on the north side, about fifty-five feet west of the crossing on Jefferson Avenue. He got on defendant's car to go east on the southern track; and when the car arrived at a point opposite his house, he pulled the bell, the car was stopped at once, and he got out, and, without looking right or left, proceeded at once directly north, across the northern parallel track, to his house. The car was of the kind called “bob-tails,” having its entrance in the rear, and drawn by a single mule. A car of defendant's line was at the same time coming west on the northern track. Plaintiff did not perceive this car until it was almost upon him, because it was so close to him. He then threw up his hand, in which he held a stick, and shouted “Stop!” The mule turned sharp to the south side, and the edge of the car struck the plaintiff and threw him down, injuring him very severely. He was confined to bed for two months, during two weeks of which time he could not be moved, and suffered excruciating pain. He used crutches for six months, and spent for medical attendance about $150. The plaintiff swears the car was about twenty steps off when he first saw it; that he cannot say whether or not it was nearly at a stand-still when he was struck; that he did not see what the driver was doing, and does not know whether the car was drawn by a horse or a mule; that the car was coming at a gallop, at full speed, and was stopped at a distance of about ten feet from the point of the accident. He was in the middle of the track when he saw the car, and tried to jump to escape, but could not get out of the way, and was struck whilst jumping. The driver knew plaintiff, and, immediately after the accident, said he had not seen him.

Five other witnesses, who saw the occurrence, were examined. Hupp, examined for the plaintiff, says that the car coming west was about ninety or one hundred and twenty feet off when he first saw it; that it went fast, under a gallop, as near as he could see; that it did not slack up on approaching plaintiff, but went full gallop; that it went the length of the car after the collision. John Nagle and Dan. Myers testify that the car coming west was going full gallop, full speed, and that they did not see the driver do any thing with the brake. Dan. Myers says the car was stopped in twenty feet. The driver of the car from which plaintiff descended was examined for defendant, but he saw nothing of the accident. A Mrs. Belden, who was in the car going west, says it was not going particularly fast at the time, and that the car went about its own length beyond the place of the accident, and was stopped there by the brake. Jeffries was on the front platform of the car going west, for the purpose of taking the place of the driver when they reached the turn-table, a few blocks off. He says that the driver and himself saw plaintiff when at the distance of the length of the court-room from him, and saw him on the track when a car-length off; that the driver pulled the lines and put on the brake, and stopped as quick as he could; that the car was going at a slow trot when it reached the Jefferson Avenue crossing; that it slacked up at that crossing, in accordance with the directions to drivers to go slow at every crossing, and the mule was just getting into its trot again when the other car was about thirty or forty feet off; that he saw plaintiff when thirty feet off; that the car could be stopped in fifteen feet, and might have been stopped before striking plaintiff; and that the driver did check up, and the witness expected plaintiff would get off the track, as he had only two steps to take to do so. This witness says that plaintiff was not struck at all; that he fell two and a half feet north of the track, and was off the track when he held up his cane and dropped over.

Four lengthy instructions were given at the instance of plaintiff, and no less than...