Moore v. St. Louis Transit Company

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

92 S.W. 390

194 Mo. 1

MOORE, Appellant, v. ST. LOUIS TRANSIT COMPANY

Supreme Court of Missouri

February 26, 1906

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

J. O More, T. J. Field and Bert Fenn for appellant.

(1) The court erred in sustaining defendant's demurrer to plaintiff's evidence and refusing to submit the case to the jury. Penney v. Railroad, 71 Mo.App. 577; Klockenbrink v. Railroad, 81 Mo.App. 351; Chamberlain v. Railroad, 133 Mo. 587; McAndrews v. Railroad, 83 Mo.App. 233; Morgan v Railroad, 159 Mo. 262; Railroad v. Ives, 144 U.S. 408. (2) Plaintiff, reasonably near and in full view of the track, looked once and thereby complied with the requirements of the law, and the question whether he was negligent in stepping upon the track without looking a second time, and if negligent whether his negligence contributed to the proximate cause of the accident, was a question of fact for the jury to decide in view of all the facts and circumstances of the case as shown in the evidence, and not for the court. Penney v. Railroad, 71 Mo.App. 577; Russell v. Railroad, 70 Mo.App. 88; Railroad v. Ives, 144 U.S. 408; Hutchinson v. Railroad, 61 S.W. 635. (3) The evidence offered by plaintiff was amply sufficient for the jury to find that defendant's motorman did see, or, by the exercise of ordinary care, could have seen, plaintiff's perilous position in time to avert the accident, and the case should have been submitted to the jury. Lamb v. Railroad, 147 Mo. 171; Railroad v. Griffith, 159 U.S. 603; Railroad v. Converse, 139 U.S. 469. (4) If plaintiff was negligent, his negligence was prior in time, and remote in cause, while the defendant's negligence was subsequent in time, and proximate in the cause of the accident.

Boyle, Priest & Lehmann and Lon O. Hocker for respondent.

Plaintiff's own evidence made out a clear case of contributory negligence, and the instruction offered by defendant was properly given. After the first car passed, the evidence shows that he did not look to see whether another car was approaching, but assumed, apparently, that inasmuch as one car had passed, another would not follow. That he could have seen the car if he had looked was apparent, because he saw the first car some distance up the street. When he got to the south cross walk of Jefferson avenue, on Thomas street, the first car was passing him. When the car passed him he was, according to his statement, two or three steps from the track. Plaintiff had no right to assume, in view of the very common occurrence of cars being operated in close proximity, especially in the case of a blockade, by fire or otherwise, that two cars would not be operated close together, and it was his duty to look after the first car had passed him. If he had taken that precaution, his injury would not have been sustained. His failure to take that precaution was the proximate cause of his injury. Drake v. Railroad, 51 Mo.App. 562. The evidence introduced did not warrant the finding that the motorman could have stopped after the plaintiff became placed in a position of peril, because, according to his own statement, and of all the witnesses, the car was right on him the moment he got on the track. The motorman was warranted in assuming that the plaintiff would not place himself in a position of peril without looking or listening. Boyd v. Ry., 105 Mo. 371. Under the law of this State for many years, it is the duty of persons when approaching street cars, as well as steam railroad tracks, to look and to listen for approaching cars at points advantageous for them to see or hear them, and to protect themselves against injury. Sharpe v. Railroad, 61 S.W. 829; Hook v. Railroad, 63 S.W. 360; Tanner v. Railroad, 61 S.W. 826. This duty is continuous until the dangerous locality is passed. Kelsey v. Railroad, 129 Mo. 362; Jones v. Barnard, 63 Mo.App. 501; Moberly v. Railroad, 98 Mo. 183; Drake v. Railroad, 51 Mo.App. 562. It will not do to say that, inasmuch as plaintiff looked once, he was exonerated from looking again. After looking the first time he saw a source of danger approaching, which his looking enabled him to avoid. After that danger had passed, it became his duty to again look in order to ascertain whether or not another danger was approaching, which his looking might have enabled him to avoid. His failing to do this was the cause of his injury. Duncan v. Railroad, 46 Mo.App. 198; Henze v. Railroad, 71 Mo. 636; Davies v. Railroad, 159 Mo. 1; Jones v. Barnard, 63 Mo.App. 501; Maxey v. Railroad, 113 Mo. 1; Butts v. Railroad, 98 Mo. 272; Drake v. Railroad, 51 Mo.App. 562.

GANTT, J. Brace, C. J., Burgess, Fox and Lamm, JJ., concur; Marshall and Valliant, JJ., concur in the result.

OPINION

In Banc

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 one hundred and fifty 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 southeasterly 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? Ans. When I came to the corner and I stepped out into the street I looked up. Q. Which way did you look? Ans. 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? Ans. Yes sir. Q. And where were you when the car passed you by? Ans. I was about in here (indicating on the map). Q. Walking south? Ans. Yes, sir. Q. To let the car pass you by? Ans. Yes, sir. Q. You did not have to stop in order to let the car pass you by? Ans. 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? Ans. 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? Ans. 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...