Murray v. St. Louis Transit Co.

• Decision Date: 01 November 1904
• Citation: 83 S.W. 995,108 Mo. App. 501
• Parties: MURRAY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

83 S.W. 995

108 Mo. App. 501

MURRAY v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 1, 1904.

STREET RAILROADS—INJURIES TO TRAVELERS—CROSSINGS—SPEED—NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—LAST CLEAR CHANCE— DUTY OF MOTORMAN — ACTIONS — INSTRUCTIONS.

1. Where plaintiff, who was injured in a collision with a street car, testified that just before starting to cross the track he saw the car more than half a block away, and that the accident happened by the car running at a high rate of speed, and there was other evidence that the car was running at too high a speed at that point, which might have been the proximate cause of the accident, it was proper to submit the speed issue to the jury, though no witness undertook to testify how many miles an hour the car was running.

2. An instruction that if plaintiff, while approaching a street crossing, where he was struck by an approaching street car, saw the car, but misjudged either its distance or speed, and drove on the track when it was dangerous to do so, it was nevertheless the duty of the motorman to use all practical means to avoid a collision, after he had seen, or by exercising ordinary care might have seen, the danger of collision; and, if the motorman was negligent in that regard, which was the direct cause of the accident, and plaintiff was exercising ordinary care, he was entitled to recover—was not objectionable on the ground that plaintiff could not have been in the exercise of ordinary care if he misjudged either the speed or the distance of the car.

3. Where plaintiff, who was injured in a collision with a street car at a crossing, claimed that the car was half a block away when he attempted to cross, and that the injury was caused by the excessive speed of the car and the failure of the motorman to check the same, plaintiff was entitled to recover, unless the jury found that the speed of the car was not excessive, or that plaintiff not only drove in front of the car so suddenly that the motorman could not save him, but did so without looking or listening, when he knew there was danger, considering the speed and proximity of the car.

4. Where the speed of a street car at a crossing was excessive, and because of that fact plaintiff was injured, when guilty of no negligence in going on the crossing, he was entitled to recover notwithstanding he drove on the track when the car could not be stopped before reaching him.

5. Plaintiff was not necessarily guilty of contributory negligence in driving on a street car track at a crossing when a car was so close and under such speed that it was bound to strike him, unless he saw the car, and realized that its speed was such that he could not cross the track before it would reach him, or by exercising ordinary prudence would have appreciated such fact.

6. Where plaintiff drove on a street car track without looking or listening, but the motorman of an approaching car, which struck plaintiff, was negligent in his watch, or in checking the car after seeing plaintiff's danger, plaintiff was entitled to recover notwithstanding his contributory negligence.

7. An instruction that, if plaintiff drove on a street car track so near the moving car which struck him that the motorman could not stop the car in time to prevent the collision, he could not recover, was objectionable as eliminating the factor of plaintiff's negligence in driving on the track.

8. The duty of a street railway motorman to control a car in order to avoid a collision does not arise exclusively when a person is on the track, but also obtains if his danger was apparent while he was approaching the track.

9. Where plaintiff, who was injured in a collision with a street car at a crossing, swore that he saw the car 150 feet south of the crossing, that his view was unobstructed, and that he attempted to drive diagonally across the track at a walk, such evidence sufficiently raised the question of the motorman's diligence in trying to stop the car before collision.

Appeal from St. Louis Circuit Court; M. N. Dale, Judge.

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

Boyle, Priest & Lehman, for appellant. Geo. B. Smith, for respondent.

GOODE, J.

This plaintiff was hurt by the collision of a trolley car of the defendant company with a United States mail wagon in which he was riding. The accident occurred in the afternoon of November 16, 1900, at the intersection of Montgomery and Ninth streets, in the city of St. Louis. The plaintiff, whose business it was to take up mail from mail boxes on the streets of the city, was riding in a one-horse wagon, in prosecution of his duty, on the date named. About half past 2 in the afternoon he approached Ninth street, driving from the east westwardly along Montgomery street. There was a single street car track on Ninth street, and cars ran thereon only from the south to the north. When the plaintiff got to Ninth street, but before attempting to cross it, he looked south, and saw the car that struck him approaching the intersection of the two streets, but, he says, a half block or more away. Supposing he had time to cross Ninth street before the car would reach Montgomery, he started across the former street; but the car struck the wagon, knocking it over with such violence that he was rendered unconscious. Plaintiff testified that he drove slantingly, across the street, for fear of breaking the wagon's springs, and that he let his horse walk over the car track because he thought he had plenty of time. His view of the car was unobstructed. His explanation of the accident is that he misjudged the speed at which the car was running, and that it came too swiftly for him to get over the track in safety. The negligence alleged is that the car was running at a reckless and unlawful speed, that the motorman in charge of it saw plaintiff crossing the track in ample time to avoid striking the wagon, but failed to do so, and omitted the ringing of his gong as he approached the crossing. The last charge of negligence was not relied on at the trial, as the plaintiff himself swore he saw the car before starting across the street, and needed no warning of its proximity. The testimony for the defendant differs from the foregoing in attributing the accident to the plaintiff's coming suddenly into the motorman's view when the car was a short distance south of the mail wagon. The motorman's statement was that he had been running very slowly because a furniture van was traveling on the track in front of his car, that when this got out of the way near Montgomery street he increased his speed, and just then the plaintiff appeared a few feet away and drove on the track. The Supreme Court held that this testimony permitted the inference that the plaintiff drove on the track without looking or listening for a car. Plaintiff had a verdict and defendant appealed.

It is contended the court should have sustained the demurrer to the plaintiff's evidence, there being no testimony to show the speed of the car was unlawful, or that the motorman discovered the plaintiff in a position of peril in time to avoid striking the wagon. From the facts stated, it will be seen that two accounts of the accident were related. According to the plaintiff's version, he actually saw the car when it was 150 feet or more away, with no obstruction intervening, and drove slowly over the track in a northwesterly direction, supposing he had time to get over before the car would reach him. According to the defendant's version, a furniture wagon interfered with the view between...