Moon v. St. Louis Transit Company
| Citation | 141 S.W. 870,237 Mo. 425 |
| Parties | REBECCA A. MOON, Appellant, v. ST. LOUIS TRANSIT COMPANY |
| Decision Date | 27 November 1911 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Charles Claflin Allen, Judge.
Reversed and remanded.
John A Gilliam for appellant.
(1) The court erred in excluding the evidence as to the speed of the car. Stotler v. Railroad, 200 Mo. 123; Walsh v Railroad, 102 Mo. 582; Aston v. Railroad, 105 Mo.App. 231; Hall v. Railroad, 124 Mo.App. 672. (2) The court erred in giving the instruction for defendant which forced plaintiff to take a non-suit. Holden v. Railroad, 177 Mo. 471; Sluder v. Transit Co., 189 Mo. 137; Woods v. Railroad, 188 Mo. 244; Garrett v. Railroad, 64 A. 254; Wolf v. Railroad, 91 P. 460 (Oreg.) ; Ashley v. Kanawha Valley Traction Co., 55 S. E. (W. Va.) 1016; Hauck-Hoerr Co. v. United Railroads, 127 Mo.App. 190; Hutchinson v. Railroad, 161 Mo. 246; Mullin v. Transit Co., 196 Mo. 572; Weller v. Railway Co., 120 Mo. 635. (3) The court erred in imputing the negligence of her husband and his driver (if there was any such negligence) to this plaintiff. Stotler v. Railroad, 200 Mo. 146; Becke v. Railroad, 102 Mo. 544; Sluder v. Railroad, 189 Mo. 138; Bailey v. Centerville, 115 Iowa 273; Willfong v. Railroad, 116 Iowa 548; Railroad v. Creek, 130 Ind. 139; Railroad v. Spilker, 134 Ind. 380; Railroad v. McIntosh, 140 Ind. 261; Railroad v. Johnson, 163 Ind. 518; Reading Township v. Telfer, 57 Kan. 798; Neal v. Rendall, 98 Me. 69; Whitman v. Fisher, 98 Me. 577; Finley v. Railroad, 71 Minn. 471; Lammers v. Railroad, 82 Minn. 120; Teal v. Railroad, 96 Minn. 379; Flori v. St. Louis, 3 Mo.App. 231; Hedges v. Kansas City, 18 Mo.App. 62; Munger v. Sedalia, 66 Mo.App. 629; Hajsek v. Railroad, 68 Neb. 539; Harris v. Uebelhoer, 75 N.Y. 169; Platz v. Cohoes, 24 Hun, 101, affirmed 89 N.Y. 219; Hoag v. Railroad, 111 N.Y. 202; Hennessy v. Railroad, 73 Hun, 269, 26 N.Y.S. 321; Metcalfe v. Railroad, 12 A.D. 147; Davis v. Guarnieri, 45 Ohio St. 470; Railroad v. Greenlee, 62 Tex. 344; Railroad v. Kietoe, 2 Tex. 643; Schouler's Dom. Rel. (5 Ed.), secs. 34 to 50; Sheffield v. Central Union Tel. Co., 36 F. 164; Shaw v. Craft, 37 F. 317; Petersen v. St. Louis Transit Co., 199 Mo. 331; Noyes v. Boscawen, 64 N.H. 361; Lapsley v. Railroad, 50 F. 172, affirmed 51 F. 174; Johnson v. St. Joseph, 96 Mo. 671; Schultz v. Old Colony St. Ry. (Mass.), 8 L.R.A. (N.S.) 597.
Boyle & Priest and T. M. Pierce for respondent.
(1) Plaintiff's driver was guilty of contributory negligence as a matter of law. Sanguinette v. Railroad, 196 Mo. 494; Beach on Contributory Negligence (2 Ed.), sec. 182; Wharton on Negligence (2 Ed.), sec. 382. It has been said that where the evidence shows that the car was traveling over three times as fast as the wagon and that it had more than four times as far to go, after the motorman saw the wagon, as the wagon had, and that the driver thought he could cross the track in safety, the motorman is not to be condemned if he thought the same. Roenfeldt v. Railroad, 180 Mo. 554. Suppose that the motorman saw the carriage approaching, did he not have a right to suppose that the driver would stop when he had ample time to do so? It was not the duty of the motorman to commence to check his car until there was something in the conduct of the driver to indicate that he did not intend to stop. The undisputed proof shows that when the driver was more than twenty-two feet from the track he could see Olive street towards the south and that he could have stopped his team within a few feet. How, then, can the judicial mind escape the conclusion, or how can reasonable minds differ upon the proposition, that the driver was negligent? Walker v. Railroad, 193 Mo. 453; Reno v. Railroad, 180 Mo. 469; Petty v. Railroad, 179 Mo. 666; Henzelman v. Railroad, 88 Mo.App. 123; Laun v. Railroad, 216 Mo. 580. The law is, that if one sees, or has reason to believe, that a street car is running in violation of a speed ordinance, he has no right to risk his life on the presumption that the ordinance is being observed. Green v. Railroad, 192 Mo. 131; Stotler v. Railroad, 204 Mo. 639. There was no evidence tending to prove within what distance a car running at twenty or twenty-five miles an hour could be stopped, and there was, therefore, no showing that the car could have been stopped in time to have averted the injury after the driver placed himself in a position of peril. In the absence of such showing, a recovery cannot be had under the Last Chance Doctrine. McGhee v. Railroad, 214 Mo. 541; Wilkerson v. Railroad, 140 Mo.App. 316; Zurfkuh v. People's Ry., 46 Mo.App. 642; Theobald v. Railroad, 191 Mo. 395; Dey v. Railroad, 140 Mo.App. 461. (2) The negligence of the driver was imputable to plaintiff. The erudite counsel for plaintiff has set out a great number of cases holding that the negligence of a woman's husband driving a vehicle in which she is seated, cannot be imputed to her. This is undoubtedly and unquestionably the law in this State and in many others. Hedges v. Kansas City, 18 Mo.App. 62; Flory v. City of St. Louis, 3 Mo.App. 231. But in New York, Indiana, Missouri, and other States, where a change has been made in the common law relations of husband and wife, and married women have a right to recover damages sustained by them for their own separate use, the contributory fault of a husband, while in company with his wife, is not chargeable to her in such an action. In the case under consideration, however, the husband had no control over his wife's actions, nor was she subject to his directions. She sat by his side, sui juris, invested by law with all the necessary weapons with which to vindicate her own rights. She was being driven by a servant under her dominion; one who would stop when she ordered, and direct the vehicle to any place where she commanded. He was her servant and she was his mistress. There is no controversy about the facts. Central Passenger Ry. Co. v. Chatterson, 14 Ky. Law Rep. 665; Nellis on Street Railway Accident Law, p. 484, sec. 5; Markowitz v. Railroad, 186 Mo. 357.
OPINION
In Banc
The plaintiff instituted this suit against the defendant to recover the sum of $ 15,000, damages for personal injuries sustained through the alleged negligence of the defendant.
A trial was had in the circuit court of the city of St. Louis, which resulted in the plaintiff taking an involuntary non-suit, with leave to move to set same aside.
Upon motion for that purpose being filed and overruled, the plaintiff duly appealed the cause to this court.
The facts are few and are substantially as follows, as appear from appellant's and respondent's statements of the case.
Appellant's evidence tended to show that she was riding in her husband's carriage, which was driven by her husband's driver, her husband sitting by her side, about 11 o'clock p. m. on February 13, 1904. While crossing Taylor avenue at its intersection with Washington boulevard her husband's carriage was struck by a St. Louis Transit Company car, then going at a speed estimated from 17 to 25 miles an hour. No gong or bell was rung or any other warning given of the approach of the car. The car had on it a small, dim light. The carriage when struck was knocked upon its side, and dragged from 40 to 100 feet, the plaintiff was cut and bruised severely, her neck twisted and strained so as to cause her great pain and suffering for many years, and a dizziness caused which at the time of the trial still existed. The limit of speed permissible under the ordinance in evidence, No. 21113, was fifteen miles per hour, restricted, however, by that provision which provided that it should not be construed as sanctioning or allowing any car at any time or place to run at any rate of speed which may be dangerous to the safety of passengers or persons on the streets.
The driver of the carriage testified that when he got about one hundred feet from the track he slowed down and checked his horses and listened for a car and hearing none he increased his speed to about the same gait that he was going just before he slacked up, and from that time until he was struck he looked both ways and listened for cars. He did not hear or see any and proceeded to cross the tracks going from six to eight miles an hour. When his horses got about eight feet from the track, he being about twenty feet therefrom, he saw a car coming from the south, he thought, about 150 or 160 feet away. He judged he could cross safely, but when his horses were about three feet from the track he saw that the car was coming much faster than he at first thought, and he then whipped up. The carriage was struck on the rear hub. The driver testified that the car was going about three times as fast as the carriage at the time he was struck, and that he could have stopped the carriage in a distance of from eight to ten feet.
There was no evidence as to the distance in which the car could have been stopped.
The driver also testified that he was coachman for the family; drove Mr. and Mrs. Moon; took orders from both of them, and that Mr. Moon was his master and Mrs. Moon was his mistress.
I. There are but three legal propositions presented by this record for determination, namely: First, did the court err in excluding the testimony of witnesses offered to show the speed at which the car was running at the time of and just prior to the collision, who were not shown to have been experts in that regard? Second, was the driver of the carriage guilty of negligence as a matter of law? And third, was his negligence imputable to the appellant?
We will dispose of those questions in the order stated.
The first proposition mentioned has...
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