Paul v. United Rys. Co. of St. Louis.

Citation152 Mo. App. 577,134 S.W. 3
PartiesPAUL v. UNITED RYS. CO. OF ST. LOUIS.
Decision Date03 January 1911
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by George M. Paul against the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Affirmed.

This is an action in which appellant sued for damages for personal injuries caused by a collision with a street car of the respondent in the city of St. Louis. After hearing the evidence for the plaintiff, the court sustained a demurrer to the same, and directed the jury to return a verdict for the defendant, from which action the plaintiff appealed to the St. Louis Court of Appeals, and the cause has been transferred to this court The appellant prepared and filed his abstract and brief in this court, and did not by motion or otherwise question the jurisdiction of this court to hear and determine this cause.

The plaintiff's petition charges that the defendant is a corporation conducting a street railway on public thoroughfares in the city of St. Louis, Mo., and carrying passengers for hire by means of electric cars; that while plaintiff on January 29, 1909, was crossing De Hodiamont avenue at or near the south side of the intersection of North Minerva avenue with De Hodiamont avenue, defendant's servants in charge of its south-bound car of the Hamilton avenue line carelessly and negligently, and without using any care to watch for persons on defendant's track at said crossing of Minerva and De Hodiamont avenues, or moving toward it and in danger of being injured by said car, and without using any care to control the movements of said car, or stop same to avoid injury to the plaintiff, and whilst running said car at a high and reckless rate of speed, caused and suffered said car to strike plaintiff violently, and hurl him down in front of and beneath said car, and drag and crush plaintiff, whereby plaintiff was severally bruised and wounded and injured. The petition then alleges the violation of the vigilant watch ordinance (section 1864, Rev. Code St. Louis 1907), which requires that motormen and conductors of street cars must keep a vigilant watch for persons on foot, either on the track or moving toward it, and upon the first appearance of danger to such persons to stop the car within the shortest time and space possible, and that such violation directly caused plaintiff's injury. The petition for a third and further assignment of negligence charges the violation of an ordinance of the city of St. Louis (section 1870, Rev. Code St. Louis 1907) which provides that whenever any car is about to pass another car going in the opposite direction, at a point where it is permissible to passengers to alight from or to board a car, said car shall proceed at a rate of speed not to exceed three miles an hour, and that the violation of said ordinance directly caused the car in question to strike and injure plaintiff. The answer was a general denial, and a plea that plaintiff was guilty of contributory negligence in stepping on the track immediately in front of an approaching car, and so close thereto that the same could not have been stopped in time to have averted the collision. Plaintiff's reply was a general denial.

Evidence introduced by the plaintiff tended to prove the following facts: De Hodiamont avenue, on which are the double tracks of the defendant's Hamilton line, runs north and south in the city of St. Louis, and Minerva avenue runs east and west, but there is an offset in Minerva avenue where it intersects De Hodiamont avenue. The part of Minerva avenue which leads into De Hodiamont avenue from the west, sometimes called North Minerva, is about 50 feet north of that part of Minerva avenue which extends to the east, sometimes called South Minerva, from De Hodiamont. Plaintiff was returning to his home from his work, and at about 6:15 p. m. of the day of his injury—January 29, 1909he alighted from one of defendant's north-bound Hamilton avenue cars at De Hodiamont and North Minerva avenues, a regular stopping place for passengers, with the intention of going west to his home, and passed behind the car from which he alighted. When he came to the west rail of the north-bound track, he looked north along the south-bound track, and could see at least 40 feet to the north up the south-bound track, and he saw no car on said south-bound track. He listened, but heard no sound of warning of a car's approach. He then proceeded on his way across the tracks toward the west side of De Hodiamont avenue. When he came to the middle of the south-bound track, a south-bound car came upon him, and ran against him, knocking him down under the fender, and dragging him 50 feet before the car could be stopped, and severely injuring him. One witness, Peter Yeakel, testified that the car which collided with plaintiff was running about 20 miles an hour at the time it struck plaintiff. There is a little curve in the tracks at that point. Plaintiff looked straight ahead as he proceeded westward across the tracks after looking north up the track from the place above mentioned where he could see that there was no south-bound car within 40 feet of him. He did not hear the south-bound car which struck him nor any sound of going, or warning of any kind, of its approach. Yeakel, who was a passenger on the car which struck plaintiff, testified that no gong or bell was sounded. Though it was dark, plaintiff does not contend that he could not have seen the car more than 40 or 50 feet if no obstruction had been in the way. He thought there was no need of looking to a greater distance for a car. His ordinary gait was four miles an hour, and he had several times compared the speed of moving street cars with the speed he was making afoot. Plaintiff testified that, after he looked the first time and continued to go on, he was thinking of getting home; that he was thinking about a street car, and whether he had time to cross after he looked; and that he thought of this because he was in the habit of crossing a double track. He did not hear the car coming, and he was listening. It was then light enough to see an object 50 or 100 yards away if it was large enough. In the opinion of one witness,...

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37 cases
  • Bradley v. S.L. Savidge, Inc.
    • United States
    • United States State Supreme Court of Washington
    • 26 Marzo 1942
    ...... definition of presumptions found in Paul v. United Rys. Co., 152 Mo.App. 577, 134 S.W. 3:. . . ... many cases, of which samples are, Reno v. [St. Louis &. S.] Railroad [Co.], 180 Mo. [469], loc.cit. 483 (79. ......
  • Swigart v. Lusk
    • United States
    • Court of Appeal of Missouri (US)
    • 14 Febrero 1917
    ...126 Mo. App. 43, 53, 103 S. W. 115; Voelker Products Co. v. United Railways, 185 Mo. App. 310, 316, 170 S. W. 332; Paul v. United Railways, 152 Mo. App. 577, 587, 134 S. W. 3; Schumacher v. Breweries Co., 247 Mo. 141, 160, 152 S. W. 13. It will be found that none of these cases except the f......
  • Payne v. Reed
    • United States
    • United States State Supreme Court of Missouri
    • 16 Marzo 1933
    ......Railroad, 240 Mo. 507;. Wilkerson v. Railroad, 140 Mo.App. 306; Paul v. Railroad, 152 Mo.App. 577. . .           Calvin,. ... Lindsay v. Schaner, 291 Mo. 297, 236 S.W. 319;. Keller v. St. Louis Butchers Supply Co., 229 S.W. 173; Gray v. Hannibal, 29 S.W.2d 710; ......
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    • 22 Octubre 1932
    ...... Wells, 31 S.W.2d 1024; Gersman v. A. T. & S. F. Ry. Co., 229 S.W. 167; Gubernick v. United Rys. Co., 217 S.W. 35; Zlotnikoff v. Wells, 220. Mo.App. 869; Paul v. United Rys. Co., 152 ......
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