Moore v. St. Louis Transit Co.

• Decision Date: 26 February 1906
• Citation: 92 S.W. 390,194 Mo. 1
• Parties: MOORE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

92 S.W. 390

194 Mo. 1

MOORE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

February 26, 1906.

1. TRIAL—DEMURRER TO EVIDENCE—EFFECT.

A demurrer to the evidence admits every fact which the jurors might infer if the evidence was submitted to them.

2. STREET RAILROADS—INJURIES TO PEDESTRIANS — SPEED ORDINANCE — VIOLATION — NEGLIGENCE.

The operation of a street car by which plaintiff was struck at a street crossing at a speed of from 18 to 20 miles an hour, in violation of a speed ordinance limiting the rate of speed to 8 miles an hour, constituted negligence per se on the part of the street car company.

3. SAME—CONTRIBUTORY NEGLIGENCE.

Where plaintiff was struck by a street car following closely after a car that plaintiff permitted to pass him before attempting to cross the street, and plaintiff did not look in the direction from which the car approached after the first car passed him, but merely assumed that no other car would follow so closely the car which had passed, he was guilty of contributory negligence.

4. SAME—PROXIMATE CAUSE.

Plaintiff was struck and injured by a street car following but 120 feet behind a car which plaintiff permitted to pass before stepping on the track. The car was being operated at a negligent rate of speed, and though plaintiff had to take only two steps to bring himself to the track, and was in the full glare of an electric light, with nothing to obstruct the view of the motorman, if he had been observing a careful lookout, as he was required by a "vigilant watch ordinance," he neither sounded his gong nor slackened his speed, but merely hallooed to plaintiff as he was about to strike him. An eyewitness also testified that she walked the width of four houses in the interval between the passing of the two cars, and that plaintiff stepped immediately on the track after the first car passed him. Held, that such evidence warranted a finding that the proximate cause of plaintiff's injury was the negligence of the motorman in either recklessly running plaintiff down or failing to keep a vigilant lookout for pedestrians, and not plaintiff's contributory negligence in failing to lookout for the approach of the car.

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

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

J. O. More, T. J. Field, and Bert Feen, for appellants. Boyle, Priest & Lehmann and Lon O. Hocker, for respondent.

GANTT, J.

This is an action for damages arising from personal injuries alleged to have been caused by the negligent conduct of the defendant in running its street cars over the plaintiff at the intersection of Thomas street by Jefferson avenue, in the city of St. Louis. The cause was tried in the circuit court of the city of St. Louis, and at the close of the plaintiff's evidence the court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit, with leave to move to set the same aside and grant a new trial. His motion was duly filed and overruled, and thereupon in due time he perfected his appeal to the St. Louis Court of Appeals. Owing to a dissent of one of the judges of the court of Appeals, the cause was certified to this court.

The following facts were developed on the trial: Jefferson avenue runs north and south, and in it defendant has a double track street railway on which its cars are propelled by electricity. Thomas street intersects Jefferson avenue and runs east and west.

At the time of the injuries of which he complains, the plaintiff resided on Thomas street, two or three blocks west of Jefferson avenue. Between 7:30 and 8 o'clock on the evening of September 26, 1900, plaintiff left his residence and started to the grocery store on the east side of Jefferson avenue, and across from Thomas street. He walked on the north side of Thomas street to Jefferson avenue, when he looked north and saw a street car coming south, 150 feet from Thomas street; and then turned south over the crossing on which he walked until a little north of the center of Thomas street, when he left it and walked diagonally south-easterly to the crossing of Jefferson avenue, on the south side of Thomas street. At this point he stopped until the car passed him going south. What transpired immediately after this is told by plaintiff in his own words as follows: "Well, I was after washing my feet, and I was in the house, and I goes to take hold of my pipe. I wanted to get a smoke and I had no tobacco, and I run my shoes on without stockings, and I started to go and get me some tobacco, and I took hold of a little pitcher that was there to get me a little beer, so at the same time I would have a cold drink. I started out, and when I got down to the corner I stepped off of the sidewalk on the crossing. The car was coming down. I see a car coming down from the alleys as I was passing along. I walked across the street and that car passed me by, and he was ringing his bell and going as fast as he could go. There is no mistake in that. Well, I was within three, or maybe I had three steps to make before I got into the track, and as soon as I got into the track the fellow hallooed, `Get out of there! Get out of there!' and I looked and I jumped, and that was the last of me. I could not tell any more. Q. When did you see the car? You said you saw a car. Ans. I see the car that passed me. I see this car ahead of it just before it struck me that way [striking his hands together], and no more. Q. Did you see that car before it struck you? A. No, sir; well, I seen it just as it was going to strike me when the fellow was hallooing at me `Get out of there! Get out of there!' and I gave a jump, and I jumped high enough to get out of his way, and that is all I know when this happened. Q. When you came to the corner, did you look one way or the other to see whether the car was coming down? A. When I came to the corner and I stepped out into the street, I looked up. Q. Which way did you look. A. I looked up north, and I was looking south. I was going south to get across the track, and I would see anything that would be coming to me there, but I looked to the north that way, and the car was coming down well from the alley, from this side of the alley, and, just as I went across about four or five feet of the crossing, the car passed, and I was along side of the car out in the street there was room enough for me to keep out of the car's way as it was passing, and as soon as I turned to go across on the crossing the fellow hallooed, `Get out of there! Get out of there!' and with that I jumped off the track, and I know no more after that."

On cross-examination he testified: Q. "You kept walking down towards the south walk of Jefferson avenue? A. Yes, sir. Q. And where were you when the car passed you by? A. I was about in here [indicating on the map]. Q. Walking south? A. Yes, sir. Q. To let the car pass you by? A. Yes, sir. Q. You did not have to stop in order to let the car pass you by? A. No, sir; I did not have to stop. Q. When the car was passing and left the crossing clear, how far were you away from the near rail of the track? A. I had two or three steps to make until I got in the middle of that track there, just two or three steps. Q. About six or eight feet, something of that sort? A. No, sir; two steps from me would amount to five feet—that is what I calculate —a step is two feet and a half. Q. Two would be five feet, and three would be 7½ feet, so you were five to 7½ feet away? A. Yes, sir. Q. When this car passed you by? A. Yes, sir. Q. And, as soon as this car passed you by, you started right on crossing the track? A. Yes, sir. Q. And you did not look any more after you looked in here for the car? A. No. Q. And you did not listen or pay any attention any more after this car had passed you by? A. No; of course not. Q. And you could see up and down the street a good ways, could you not? A. If it was not dark, you could see a good ways down, but the trouble was you could not see where there was two cars, one behind the other. You could not see if there be two; one following the other. You could see only the one car coming, and then I expected no other one behind it. Q. In other words, you did not expect two to be so close together, and therefore did not look? A. Exactly. Q. You could see a block away at that time of night on that day could you not? A. I do not know as I could see a block away at that time of night. I am not so sure. Q. You could see a light a long ways? A. Yes. Q. And you could see an object not lighted over a hundred feet away, could you not, on that evening? A. Yes, sir. Q. Now, in order to look south to see whether the car comes and to look north, you merely had to turn your neck, just a glance? A. Yes. Q. You did not have to turn your whole body? A. Yes, sir. Q. And you can look in both directions, can you not, the space of a second, both north and south? A. I could look both north and south, and I looked north because my back was to the north, and, as I was going across, I looked north and I saw a car coming. Q. You were looking north when the first car passed, and before you reached the cross-walk? A. Yes, sir. Q. After the car passed you, you did not look north any more; that is, what you say? A. No, sir; I did...