Petersen v. St. Louis Transit Co.

• Decision Date: 31 October 1905
• Citation: 89 S.W. 1042,114 Mo. App. 374
• Parties: PETERSEN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

89 S.W. 1042

114 Mo. App. 374

PETERSEN v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

October 31, 1905.

STREET RAILROADS — PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY.

Where, on driving onto the street occupied by a street railroad, the driver looked and was unable to see any street car approaching, his failure to look when he drove on the track a little later, the driver relying on a warning being given by the motorman, and having poor eyesight, and being in a position where it was inconvenient for him to look, did not render him guilty of contributory negligence as a matter of law.

Appeal from Circuit Court, Washington County; Frank R. Dearing, Judge.

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

Boyle, Priest & Lehman and Dinning & Hamel, for appellant. Richard T. Ralph and E. M. Dearing, for respondent.

BLAND, P. J.

Plaintiff was crossing Clark avenue, in the city of St. Louis, riding in his one-horse storm buggy. The buggy and horse were struck by one of defendant's cars, traveling east, and pushed along the track, causing the horse to fall upon the fender, but he recovered, and from fright ran down Twenty-First street and into a fence, where the buggy was upset and the plaintiff thrown out and badly injured. The buggy was broken, the harness destroyed, and the horse rendered practically worthless. The grounds of negligence assigned in the petition, and relied on at the trial were: First, the violation of the vigilant-watch ordinance; second, failure to warn plaintiff of the approach of the car; third, failure of the motorman in charge of the car to exercise ordinary care to stop the car to avoid injuring plaintiff. The answer was a general denial and a plea of contributory negligence.

Plaintiff's evidence is that at the time of the injury he was in the laundry business, at No. 2139 Clark avenue (on the north side of the street), and had been engaged in that business for 15 years. Clark avenue runs east and west, and Twenty-First and Twenty-Second streets run north and south, and cross Clark avenue at right angles. Plaintiff testified that he drove out of Twenty-Second street onto Clark avenue, turned east, and drove along the side of the railroad track from 30 to 35 feet, then turned to drive across the street. Just as the front wheels of the buggy were on the track, the car struck the buggy and shoved it along on the track about 10 feet. This shoving of the buggy brought the horse around and in contact with the car, causing him to fall on the fender, but he got upon his feet and ran away down Twenty-First street and into a fence. The curtains of plaintiff's storm buggy were down. Plaintiff testified that...