Meyers v. St. Louis Transit Co.

• Decision Date: 17 March 1903
• Parties: MEYERS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

73 S.W. 379

99 Mo. App. 363

MEYERS v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

March 17, 1903.

STREET RAILROADS — REGULATION — MUNICIPAL ORDINANCES—SPEED—VIGILANT WATCH —COLLISION WITH VEHICLE—COMPLAINT— COMMON-LAW AND STATUTORY NEGLIGENCE —JOINDER—VIOLATION OF ORDINANCE—NEGLIGENCE PER SE—LAST CLEAR CHANCE— CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

1. A city ordinance providing that operatives of street railway cars shall keep a vigilant lookout for obstructions on the track is a police regulation binding on all street railways operating cars in the city limits, whether accepted by such railways or not.

2. In an action for injuries to the driver of a vehicle by collision with a street car, plaintiff is entitled to join in the same count or cause of action negligence arising from a breach of defendant's common-law duty to use due care and negligence arising from defendant's breach of a city ordinance requiring a vigilant lookout.

3. Where at the time of a collision between a street car and a vehicle the motorman was running the car at a rate of speed prohibited by a city ordinance, defendant was guilty of negligence per se.

4. Where a motorman operating a street car, after having seen plaintiff on the track, attempting to move a balky horse, continued to run his car at a rate of speed prohibited by a city ordinance, and made no effort to stop or check the car, which came into collision with the vehicle, he was guilty of both common-law negligence and of a violation of an ordinance requiring motormen to keep a vigilant watch for obstructions.

5. When plaintiff drove into a street on which a street railway line was operated, he saw a car coming toward him at a distance of 150 to 200 feet. He would have had sufficient time to have crossed the track in front of the car, but when his horse got partly over the track he balked and would not proceed. At the time the horse stopped, the car was from 100 to 125 feet distant, and could have been checked in time to avoid a collision, but the motorman made no effort to do so. Plaintiff knew that his horse was balky, and might have escaped injury by jumping from the wagon before the collision. Held, that the motorman had the last clear chance of avoiding the injury, and plaintiff's contributory negligence, if any, was no bar to a recovery.

6. Whether plaintiff, by remaining in his wagon, was guilty of contributory negligence, which continued down to the injury, and directly contributed thereto, was a question for the jury.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Emil S. Meyers against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Plaintiff recovered a $1,000 judgment against defendant for injuries he received in a collision with one of defendant's street cars on June 4, 1900, on Washington avenue, where the avenue is crossed by Beaumont street, in the city of St. Louis. From this judgment, defendant appealed.

For the plaintiff, the evidence tends to prove that plaintiff was driving a one-horse open spring wagon north on Beaumont street, with a few buckets of sand in the wagon, and his brother sitting on the wagon seat beside him. He testified that when he reached Washington avenue he saw a car coming from the west on Washington avenue, at a distance of 150 to 200 feet from the crossing; that when his horse reached the railway track the car was something like 175 feet away; that after the horse and the fore wheels of the wagon had gotten over the track, and just as the hind wheels of the wagon struck the south rail, and when the car was from 100 to 125 feet away, the horse stopped and refused to go. Plaintiff had no whip, but tried to make the horse go on by slapping him with the ends of the lines. The horse shook his head, but would not go forward. Plaintiff testified that he had owned the horse six or eight years; that he would balk anywhere, but, if let alone for awhile, he would move on himself; that he had lived in the city of St. Louis and used a horse and wagon for 20 years, and was familiar with street railway crossings. Plaintiff also testified that when the horse stopped he had time to get out of the wagon and to walk to the sidewalk before the collision occurred, but that he was trying to get his horse and wagon over the track, and supposed he did not have the presence of mind to get out of the wagon. He further testified that the car was running pretty fast. Other witnesses on his behalf testified that it was running at a speed of 20 miles per hour, and that the motorman made no effort whatever to stop or check the car, and, when the wagon was struck, plaintiff was shot up into the air as high as the trolley line, and fell into the gutter on Washington avenue; that the wagon was wrecked and the horse injured. Plaintiff's brother, after the collision, was found hanging on the front platform of the car. He was uninjured, but so frightened that he could not account for how he got out of the wagon, or how he got hold of the car. It is manifest, however, that he was not in the wagon when it was struck by the car. The plaintiff read in evidence an ordinance limiting the speed of cars to 10 miles an hour east of Grand avenue, and also the vigilant watch ordinance. The evidence tended to prove that plaintiff's injuries were quite serious, that he was laid up for seven or eight weeks, and that one of his hips was permanently injured.

For the defendant, the motorman in charge of the car testified: "Coming east on Washington avenue I got to within 100 feet of Beaumont street, when I noticed a wagon coming north on Beaumont. I rang my bell, and the driver heard it, because he pulled up, with his horse's head on a line with the street curbing on Washington avenue, and stopped. By that time I was within about 75 feet from him. I rang my bell again, and had proceeded about 10 feet further, about 25 feet off from him, and I saw him standing looking at the car, and I reached over and cut off my brake, and applied the power and I can't say whether he used the whip or line, but he reached up and hit his horse a cut over the back, and the animal jumped, and I saw that there was going to be an accident, and I shut off the power and pulled back the reverse, and had no more than done that than I hit him. The Court: You stated right in the beginning that you saw the plaintiff, but you didn't say where he was when you first saw him? A. He was about 75 feet from the curb back on Beaumont." He further testified that the car was running at a speed of about 6 miles per hour; that a special police officer—one Keyser—was riding on the front platform of the car...