Murray v. St. Louis Transit Co.

• Citation: 75 S.W. 611,176 Mo. 183
• Parties: MURRAY v. ST. LOUIS TRANSIT CO.
• Decision Date: 20 June 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 611

176 Mo. 183

MURRAY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

June 20, 1903.

STREET RAILROADS — INJURIES — STREET CROSSINGS—SOUNDING GONG—NEGLIGENCE— EVIDENCE—INSTRUCTIONS—REFUSAL.

1. Where, in an action for injuries in a collision with a street car, plaintiff alleged defendant's negligence in failing to sound the gong, and witnesses who were in a position to have heard the gong, if it had been sounded, testified that they did not hear it, such evidence justified a finding that the bell was not sounded.

2. Where, in an action for injuries sustained in a collision with a street car at a crossing, plaintiff testified that he saw the car coming toward the crossing, half a block away, the failure of defendant's motorman to sound the gong in approaching the crossing was not actionable negligence as to plaintiff.

3. Where, in an action for injuries in a collision with a street car, defendant's evidence justified the inference that plaintiff attempted to cross the track without looking or listening, and, if he had looked after he had passed in front of a furniture van in front of the car, he would have seen the car in time to have stopped before it reached him, it was error to refuse to charge that it was plaintiff's duty, before going on the track, to look and listen, and if by so doing he could have avoided the accident, by ordinary care, but neglected to do so, he could not recover.

4. The fact that the court, in an action for injuries, instructed that it was plaintiff's duty to use ordinary care for his own safety in attempting to cross a street car track, and then defined the term "ordinary care," did not justify the refusal of a requested instruction that if plaintiff failed to look or listen before going on the track, when, if he had done so, he could have avoided injury, he was guilty of contributory negligence.

Appeal from St. Louis Circuit Court; Seldem P. Spencer, Judge.

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

Boyle, Priest & Lehmann and Lon O. Hocker and Walter H. Saunders, for appellant. Geo. E. Smith, for respondent.

VALLIANT, J.

Plaintiff recovered a judgment for $500 damages for personal injuries received by him in a collision with one of defendant's street cars, caused, as he alleges, by the negligence of defendant's servants. Defendant appeals from the judgment, and as the appeal was taken before this court had passed on the question of the validity of the constitutional amendment authorizing nine jurors in a civil case to return a verdict, and as that question was raised in the trial court in this case, the appeal was brought to this court. Since the appeal in this case was taken, however, that constitutional question has been decided by this court, and it is no longer in doubt. Gabbert v. C., R. I. & P. R. R., 70 S. W. 891.

The petition charges the following acts of negligence: That the servants in charge of the car were inexperienced and unskillful. They were running the car at an unlawful and reckless speed. The motorman in charge saw the plaintiff crossing the track in ample time to have averted the accident, but neglected to do so. The motorman neglected to ring his gong. The answer was a general denial, and a plea that plaintiff was guilty of negligence contributing to the accident, in that he drove on defendant's track without looking or listening, and in such close proximity to the moving car as to prevent those in charge of it from stopping in time to prevent the collision.

The plaintiff's evidence tended to prove as follows: Montgomery street runs east and west, crossing Ninth street at right angles. In the afternoon of August 17, 1900, plaintiff, a man 59 years of age, was driving a one-horse wagon, going west, on Montgomery street. It was a covered wagon, with curtains at the sides, but the curtains were rolled up, and the driver could see to the front and on both sides. Defendant owns a single-track street railroad on Ninth street, the cars over which pass only in one direction—north. As the plaintiff, driving, approached defendant's track, when his horse's head was 6 or 7 feet east of the east rail, he looked to the south, and saw a car approaching about half a block distant, and, judging that he would have sufficient time to cross, drove on slowly; but, before he got across, the car struck the wagon, overturned it, and threw him out, inflicting injuries. Neither the plaintiff nor any of his witnesses heard a gong ring. The defendant's evidence tended to prove as follows: When the car going north had passed about 50 feet north of Warren street, which is the next street south of Montgomery, its movement was impeded by a large furniture wagon on the track, going slowly in the same direction. The motorman rang his bell to signal the driver of the furniture wagon to get off the track, and when that wagon was about 20 feet from the south line of Montgomery street it moved off the track to the right. The car was then about 15 feet behind it, or about 35 feet from the south line of Montgomery street. The motorman did not see the plaintiff's wagon until the furniture wagon had cleared the track. Then the plaintiff's wagon was within 10 feet of the track. As soon as the motorman saw the plaintiff's wagon, he applied his brake, reversed his motor, and tried to stop the car, but it was too late. The car struck the wagon and turned it over, but did not injure it, and stopped in the intersection of the two streets, three or four feet south of the north line of Montgomery street.

The court, of its own motion, gave the jury the following instruction:

"If, from the evidence, you find and believe that on August 17, 1900, the plaintiff was thrown out of the wagon which he was driving, and was injured, by reason of one of defendant's cars striking said wagon at a public crossing in this city, and that, the plaintiff in approaching the track, and thereafter, exercised reasonable care for his own protection, and that the defendant's servants in charge of said car either ran said car at a rate of speed which was negligent on their part, as hereinafter explained, or that they negligently failed to give any warning of the approach of the car, or that they negligently failed to stop the car in time to avoid the accident after they saw the plaintiff...