Parrish v. United Rys. Co.

• Decision Date: 07 April 1924
• Docket Number: No.23944.,23944.
• Citation: 260 S.W. 748
• Parties: PARRISH v. UNITED RYS. CO.
• Court: Missouri Supreme Court

260 S.W. 748

PARRISH v. UNITED RYS. CO.

No.23944.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by Charles H. Parrish against the United Railways Company. Judgment for plaintiff, and defendant appeals. Judgment affirmed on condition of filing of remittitur within 10 days; otherwise judgment reversed and remanded for new trial.

Charles W. Bates and T. E. Francis, both of St. Louis, for appellant.

Loewenstein, Scherer & Sievers and Earl M. Pirkey, all of St. Louis, for respondent.

Statement.

WOODSON, J.

The plaintiff instituted this suit in the circuit court of the city of St. Louis against the defendant to recover $25,000 damages sustained for personal injuries received and damages done to his wagon caused by the alleged negligence of the defendant in running one of its street cars into and against his wagon and knocking it from the track and throwing him to the street with great force and violence, causing the injuries complained of. The trial was had before the court and a jury, which resulted in a verdict and judgment for the plaintiff for the sum of $15,042.30. After moving unsuccessfully for a new trial, the defendant duly appealed the cause to this court.

This case arose out of a collision between one of the defendant's cars and the plaintiff's coal wagon at a street crossing in the city of St. Louis. It happened on Park avenue, between Eleventh street and Twelfth street, in what is called the 10 miles per hour district. Park avenue ran east and west; Eleventh, Twelfth, and Fourteenth streets and the alley ran north and south, and intersected Park avenue. Defendant's double track ran on Park avenue. All these streets and alleys are about level at the places involved in this case.

Plaintiff drove a one-horse wagon containing about 1½ tons of coal north on Eleventh street. When he reached Park avenue he drove to the north side of Park avenue, then turned west, and went west along the north side of Park avenue until he came opposite an alley which ran north and south and intersected the south line of Park avenue. When his wagon had got about opposite the mouth of the alley he swung his horse to the left, that is, to the south, and then to the east till he was about opposite, north of, and facing this south alley. He looked east and saw nothing coming; he looked west and saw nothing coming. His horse was then standing on the north track, that is, the west-bound track. A. west-bound street car had just passed him, and when he looked it was about 100 feet west of him. He could see to the left of this car along the eastbound track about 250 feet west. He saw nothing in this distance; then he started south. When his horse got on the eastbound track, according to the testimony of Anna Lexa, the street car which struck his wagon was leaving Fourteenth street coming east. Fourteenth street was 611 feet from the point of collision. Plaintiff was driving about one mile an hour. There was evidence that the street car was running about 25 miles an hour. When plaintiff's wagon was almost across the east-bound track the street car struck the north half of the right hind wheel and knocked the wagon against a pole some distance from the track, and scattered coal on the street, and wrecked the wagon, and knocked plaintiff from the wagon to the street, where he lay unconscious for some time until some bystanders said he might still be living, and had him sent to the hospital. He sustained serious permanent injuries from the experience.

Opinion.

I. Counsel first contend that the action of the trial court was erroneous in refusing to sustain a demurrer to the plaintiff's evidence; also for refusing to give a peremptory instruction at the close of the evidence telling the jury to find for the defendant. This contention is predicated upon insistence that the plaintiff was guilty of contributory negligence, such contributory negligence that the court should have declared as a matter of law that the plaintiff could not recover. The contributory negligence complained of is the failure of the plaintiff to look but once, when he could have looked the second time, and could thereby have seen the approaching car in time to have prevented the injury. In our opinion this insistence is not well taken. For one thing, the record abounds in evidence showing that the plaintiff looked two or three times for the car before he started across the track. We here quote some of the evidence bearing upon that question:

The plaintiff testified:

"Q. Well, now, tell what you did to try to go in the alley? A. Just a few steps before I got to the alley a Tower Grove car passed me there, and when I had got even with the alley, the turning place, I stopped and looked east; didn't see any car; I looked west; I didn't see any. At the same time I was drawing the horse south across Park avenue in a circle, and when he had gone just far enough I stopped in order to straighten him up to go south; I looked west, didn't see any car, and then I looked south and proceeded to go south over towards the alley. Q. When you got your horse straightened out after you turned him toward the east and got him back, tell us, when you started south, where was the horse then? A. He was standing on the west-bound track. He was on the west-bound track. I turned him on the west-bound track."

On cross-examination he testified:

"Q. I will ask you if this question was asked you on your former testimony in this case, and if you made this answer (reading): `Question by the Court: Just state where you came from, what street you took that morning? Answer: I was driving north on Eleventh street, towards Park avenue, and when I got to Eleventh and Park I looked each way, but I didn't see any car coming, and I drove directly across Park avenue to the north side, West on Park, and I drove until I had gotten almost to the alley, and a Tower Grove car passed me, going west, and when I got even with the mouth of the alley I stopped, and I looked both ways again, and I didn't see any car, and I could see all the way back to Eleventh and Park, where the cars came into Park, and I could see west of me from 200 to 250 feet on the track; I suppose about that much.' Did you make that answer? A. Yes. Q. Then, why is it that you now say you could hardly see about 100 feet? A. I beg your pardon; I didn't say that. Q. Well, what did you say? Tell the jury what you said a moment ago. A. I said that this Tower Grove car was about 100 feet, more or less, from where I was. Q. I asked you the question, and, as I understood your answer, that you could not see to the west more than 100 feet, because the Tower Grove car was about 100 feet away from you; is that right? A. That was the west-bound car. Q. That is the west-bound car? A. Yes. Q. Now, you were looking to the west? A. Yes. Q. Now, here in this statement you say you could see 250 feet. A. I could see about 250 feet; about 200 or 250 feet on the east-bound track."

Anna Lexa testified:

"Q. When his horse got on the track, the track that the east-bound car runs on, did you see the car at that time? A. Yes, sir. Q. Where was the car? A. The car was leaving Fourteenth street. Q. About how fast was this...