Moore v. St. Louis Transit Co.

• Citation: 95 Mo. App. 728,75 S.W. 699
• Parties: MOORE v. ST. LOUIS TRANSIT CO.
• Decision Date: 04 August 1902
• Court: Court of Appeal of Missouri (US)

75 S.W. 699

95 Mo. App. 728

MOORE v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

August 4, 1902.

STREET RAILWAYS — PERSONAL INJURIES — PERSON CROSSING TRACK — FAILURE TO LOOK AND LISTEN—CONTRIBUTORY NEGLIGENCE — DISCOVERED PERIL — EVIDENCE— SUFFICIENCY—DEMURRER TO EVIDENCE.

1. Where a demurrer is sustained to the plaintiff's evidence, every fact which the evidence tends in the slightest degree to prove must be taken as admitted.

2. In an action against a street railway company by a person injured while crossing the track, evidence held to require submission to the jury of the issue as to whether plaintiff was guilty of contributory negligence in failing to again look and listen when crossing the track immediately after a passing car.

3. In an action against a street railroad company for injuries caused by being struck by a car while attempting to cross the track, plaintiff's contributory negligence was not fatal to recovery where it appeared that defndant's servants could have stopped the car in time to have avoided injury to plaintiff had it not been running at a recklessly high rate of speed, in excess of that allowed by ordinance.

4. In an action by one injured while attempting to cross street car tracks, evidence held to require submission to the jury of the issue as to whether failure to stop the car in time to avoid injury to plaintiff was due to the operation of the car at a reckless rate of speed, in excess of that permitted by ordinance.

Goode, J., dissenting.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by Michael Moore against the St. Louis Transit Company. From a judgment for defendant, plaintiff appeals. Reversed.

J. O. Moore, T. J. Field, and Bert Fenn, for appellant. Boyle, Priest & Lehmann and Lon O. Hocker, for respondent.

BLAND, P. J.

Was the plaintiff guilty of contributory negligence? and, if so, was such negligence the direct cause of the injury, or was there sufficient evidence to have warranted the court to have sent the case to the jury to determine whether the injury was due to the fault of the plaintiff or to the fault of the defendant? are the questions presented for decision by the record in the case. The trial court having granted a demurrer to the plaintiff's evidence, every fact which the evidence tends to prove, though but in the slightest degree, must be taken as admitted by the demurrer. Bender v. St. L. & S. F. Ry. Co., 137 Mo. 240, 37 S. W. 132; Franke v. The City of St. Louis, 110 Mo. 516, 19 S. W. 938; Noeninger v. Vogt, 88 Mo. 589; Herboth v. Gaal, 47 Mo. App. 255; Wilkerson v. Consolidated Street Ry. Co., 26 Mo. App. 144. And every inference which the evidence tends to show in plaintiff's favor should be drawn. Patton v. Bragg, 113 Mo. 595, 20 S. W. 1059, 35 Am. St. Rep. 730; Franke v. The City of St. Louis, supra; Field v. The Mo. Pac. Ry. Co., 46 Mo. App. 449.

The evidence of plaintiff is that he did not look or listen for a car coming from the north just before stepping on the crossing; that had he looked he could have seen the car at least 100 feet away; that he did not expect a car from that direction, one having just passed; and that he looked out for a car coming from the south on the east track, when he was struck by one coming from the north on the west track. There are some acts (such as the nonobservance of statutes and ordinances designed for the protection of the public, and such reckless conduct as manifests a wanton disregard for the safety and property of others), and some omissions of duty, that are so palpably negligent that the courts uniformly pronounce them to be negligence per se, and from these pronouncements rules of conduct have been formulated, one of which is that a pedestrian who is about to cross a street railway crossing where there are no gates, flags, guards, or signals of warning, is guilty of negligence if, according to his opportunity, he fails to look and listen both ways for a car before attempting to cross the track. Cooksey v. The K. C., St. J. & C. B. R. R. Co., 74 Mo. 477; Bindbeutal v. Street Ry. Co., 43 Mo. App. 463; Hickman v. The Union Depot Ry. Co., 47 Mo. App. 65; Smith v. The Citizens' Ry. Co., 52 Mo. App. 36; Sonnenfeld Millinery Co. v. People's Ry. Co., 59 Mo. App. 668. This rule should be reasonably applied, and exceptions made to it when reason and common experience would make its application impracticable, or harsh and unjust to the pedestrians in the streets of a populous city. There are times in these cities when, on account of the crowded condition of the streets, to apply the rule in all of its strictness, would effectually block the street crossings or expose the pedestrians to unavoidable hazards. In applying the rule, it seems to us that some regard should also be had to the usual order, time, and manner of the passing of cars one after another on the same track, and to the situation and environment of the plaintiff; and, if injury is inflicted by a car to the plaintiff while in a position that a reasonably prudent man would have taken in like circumstances, he ought not to be denied a recovery on account of his mere failure to look in the direction from which the car came, when to have looked would have been to have exercised more than ordinary care by one in his situation. In such circumstances the question of his contributory negligence should be for the jury.

It seems to us that the evidence in the case at bar presents a situation where the rule should yield somewhat to the circumstances. The time between cars on the same track, while not always uniform, is well known to be from 3 to 20 minutes. The plaintiff was familiar with the streets and with the running of the cars. He stated he did not expect a car so soon from the north (neither would any other person in his situation and with his experience), and that he looked to the other side of the street, and south down the east track for a car on that track. This was a reasonable expectation, and one that would have been realized had the cars on both tracks been running on schedule time. If this was such care as an ordinarily prudent man would have exercised in like circumstances, then the plaintiff was not guilty of contributory negligence. Cincinnati Street Ry. Co. v. Snell, 54 Ohio St. 197, 43 N. E. 207, 32 L. R. A. 276; Consolidated Traction Co. v. Scott (N. J. Err. & App.) 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. Rep. 620; Evansville Street Ry. Co. v. Gentry, Adm'r (Ind. Sup.) 44 N. E. 311, 37 L. R. A. 378, 62 Am. St. Rep. 421; Johnson v. St. Paul Street Ry. Co., 67 Minn. 266, 69 N. W. 900, 36 L. R. A. 586. But conceding, as the decisions of our appellate courts seem to indicate, that the plaintiff was guilty of negligence per se in failing to look to the north for an approaching car, the fact remains that, if there was time and opportunity for the motorman to have stopped or so reduced the speed of his car as to have avoided the injury after the peril of the plaintiff was discovered, or could have been discovered by the motorman by the exercise of ordinary care, the law is that though the plaintiff was guilty of negligence his negligence was not the direct cause of the injury, but that the negligence of the motorman in failing to stop the car and prevent the injury was the sole proximate cause of the injury. Shearman & Redfield on Negligence (5th Ed.) § 99; Chamberlain v. Pullman Palace Car Co., 55 Mo. App. 474; Isabel v. Han. & St. J. R. R. Co., 60 Mo. 475; Rine v. The Chicago & Alton R. R. Co., 88 Mo. 392; Reardon v. The Mo. Pac. Ry. Co., 114 Mo. 384, 21 S. W. 731; Baird v. Citizens' Ry. Co., 146 Mo. 265, 48 S. W. 78; Cooney v. So. Electric Ry. Co., 80 Mo. App. 226; Klockenbrink v. St. L. & M. Riv. Co., 81 Mo. App. 356, and cases cited; McAndrew v. St. Louis & Sub. Ry. Co., 88 Mo. App. 97; Roberts v. Spokane Street Ry. Co. (Wash.) 63 Pac. 506, 54 L. R. A. 184. Judge Scott expressed the rule, in Adams v. Wiggins Ferry Co., 27 Mo., loc. cit. 101, 72 Am. Dec. 247, as follows: "Where there is a mere passive fault or negligence on the part of the plaintiff, the defendant is bound to the observance of ordinary care and prudence in order to avoid doing him a wrong." And in Tuff v. Borman, 5 Com. B. N. S. 573, the rule is expressed as follows: "Mere negligence or want of ordinary care will not disentitle a plaintiff to recovery, unless it is such that but for it the misfortune could not have happened, nor if the defendant might, by the exercise of care on its part, have avoided the consequence of the negligence and carelessness of the plaintiff." To the same effect, in Virginia, Midland Ry. Co. v. White, 84 Va. 498, 5 S. E. 573, 10 Am. St. Rep. 874.

The evidence is that plaintiff was in the glare of the street lamp, and could have been seen by the motorman had he looked, and the fair inference to be drawn from the evidence is that the car was at least 100 feet from the crossing when the plaintiff was about to step on the track, and that the car could have been stopped in 70 feet had it been running at a lawful speed. Without any warning by ringing the bell, without an effort to stop or check his car, while plaintiff's back was turned toward the north, the motorman ran his car onto him. This was evidence of culpable negligence that should have been submitted to the jury.

2. It is a reasonable inference also, that, had the car been running at a speed of eight miles per hour, the plaintiff would have had ample time to pass over the west track in safety. The ordinance regulating the speed of cars in the city is a police regulation for the protection of the public, and is as binding on the defendant as if the regulation had been made by a state enactment, and all persons traveling in the street had a right to expect that defendant would observe the ordinance, and to govern their situation accordingly. The ordinance had a direct bearing on the question of defendant's negligence, and should be taken into...