Pienieng v. Wells
| Decision Date | 16 March 1925 |
| Docket Number | 23507 |
| Citation | 271 S.W. 62 |
| Parties | PIENIENG v. WELLS |
| Court | Missouri Supreme Court |
Motion for Rehearing Overruled April 13, 1925.
Wendell Berry, of St. Louis, for appellant.
T. E Francis and W. H. Woodward, both of St. Louis, for respondent.
The plaintiff sued on account of personal injuries sustained through the collision which occurred on January 27, 1921 between the Ford truck driven by him, and a street car operated by the defendant. The acts of negligence pleaded by plaintiff were: Running the street car at a dangerous rate of speed, in excess of 15 miles per hour; failure to stop or check the street car when defendant's agents saw, or by the exercise of ordinary care could have seen, plaintiff in or near a position of peril, in time, by the exercise of ordinary care, to have avoided striking him; failure to keep vigilant watch for vehicles upon or near the crossing failure to stop or check the car or give any warning after defendant's agents saw, or could have seen by the exercise of ordinary care, that plaintiff was in such a position that he would be struck if the street car continued without check, or stop, or the sounding of any warning of its approach; violation of the Vigilant Watch Ordinance; and violation of the ordinance limiting the speed of street cars to 15 miles per hour. The answer pleaded negligence of plaintiff, in driving toward the track without looking or listening, when by doing so he could have heard the moving street car in time to have remained away from the track, driving without looking or listening, close to and into a moving car, and driving at a rate of speed in excess of 10 miles an hour in violation of the ordinance limiting the speed of automobiles.
The cause was submitted to a jury and a verdict was returned in favor of the defendant. For plaintiff the case was submitted on the theory of negligence of defendant in running the car at a speed in excess of 15 miles an hour, and on the humanitarian doctrine. The plaintiff assigns error in respect of certain instructions given for the defendant. Defendant counters with the contention that plaintiff was guilty of contributory negligence as a matter of law, and that under the evidence the case was not submissible under the humanitarian doctrine. The questions raised require a somewhat general statement of the evidence, and a more exact setting forth of the testimony of the plaintiff himself, upon certain points.
The plaintiff was engaged in the delivery of bread, and was familiar with the locality. He was driving west in the city of St. Louis on Wagner avenue. Wagner avenue begins at Hodiamont avenue, about 190 feet east of the suburban tracks, which, running north and south, cross Wagner avenue. There are two tracks. South-bound cars use the west track, and north-bound cars the east track. The plaintiff's truck collided with a southbound Kirkwood-Ferguson street car, running on the west track. The space between the two tracks was 5 feet and 10 inches, and the width between the rails of each track 4 feet and 10 inches. A two-story building stood on Wagner avenue at the northeast corner of its intersection with the tracks. The building stood 20 feet back from the street line, and the west side of the building was about 6 feet east from the east rail of the north-bound track. Wagner avenue is slightly upgrade, going west of that point, and the street car tracks were slightly downgrade, going south. The plaintiff's truck was a one-ton truck, had a large body on it, and was about 18 feet in length.
Plaintiff's testimony was that as he drove west, approaching the tracks, he had his truck under control; that he was driving on the north side of Wagner avenue, or about 4 feet from the north curb: that as he approached the tracks, at a distance of about 10 feet from the east or north-bound track, he looked north, but then saw nothing approaching from the north; that his view at that point was obstructed by the building on the northeast corner; that he slowed down, and when he was from 3 to 5 feet east of the east rail of the north-bound track, he looked north, and saw a street car approaching south-bound on the west track; that the street car when he thus saw it was passing a post, distant (according to measurement afterward made) 167 feet from the Wagner avenue crossing; that at the time his truck was moving 3 to 5 miles an hour; that at the rate he was then going he could stop in 3 feet; that he thought he had time to cross safely ahead of the street car; that he was unable to judge the speed of the car as he looked at it from a front view; that he looked south and saw nothing approaching from that direction, and looked ahead, and continuing to move, his truck was struck on the west track by the south-bound street car; that after seeing the south-bound car at the point 167 feet north of the crossing, he did not again look north, nor again see this car, until it was immediately upon him, and too late to avoid being struck. On cross-examination his statement was that he saw the car, and looked south, and he then added: 'And when I started to cross in low speed I was struck.' The left front of the car struck the truck at a point back of the cab. In his direct examination the plaintiff testified that he knew of the city ordinance which limited the speed of the street car to 15 miles per hour, and that he assumed and judged that the south-bound car, at the time he saw it 167 feet from the crossing, was running at about 15 miles an hour, and did not think it was going faster than that, but did not know. He was cross-examined at length upon this point -- this estimate, or impression as to the speed of the street car at the time he first saw it and decided he could cross ahead of it -- and that testimony will be given later, on account of its material bearing upon the determination of the questions raised. It was admitted that the section of the city in which the collision occurred was one wherein the speed of street cars, under the terms of the ordinance, was limited to 15 miles an hour. There was also in evidence the Vigilant Watch Ordinance, requiring the persons operating a street car to keep vigilant watch for vehicles and persons on foot either on the track or moving towards it, and requiring the street car on the first appearance of danger to such persons or vehicles to be stopped in the shortest time and space possible, but the Vigilant Watch Ordinance was not included in the terms of any instruction.
There is irreconcilable conflict in the testimony as to the speed of the street car as it closely approached the crossing, and wide conflict as to the speed of the truck as it came on the crossing, and conflict as to whether the gong of the street car was sounded at all, or, if so, at what point first sounded, and as to the distance the car ran and pushed the truck before stopping. Laying aside at this time the testimony of the plaintiff himself, the testimony tends strongly to show that as the street car approached the crossing, and to a point very near to the crossing, it was running at a speed approximating 30 miles an hour. Thomas Lavin, the motorman, a witness for defendant, testified that at the post, 167 feet north of the crossing, he 'was going 20 or 30 miles an hour, maybe, up there.' Samuel Weir, a witness called by plaintiff, was approaching the crossing from the west. He had an unobstructed view of the street car, and estimated its speed at 35 miles an hour. He saw plaintiff's truck approaching when it was about 50 feet east of the track, and going about 10 miles an hour. He stopped his automobile about 25 feet west of the track, and he witnessed the collision with plaintiff's truck. While he noticed plaintiff's car approaching from the east running about 10 miles an hour, he did not notice whether plaintiff looked north or not. He said it seemed to him that plaintiff continued at the same speed up to the time he was struck. Two passengers on the street car testified that it was going 25 to 30 miles an hour as it approached Wagner avenue, and did not slacken its speed, and that the motorman did not sound the gong. They did not testify as to whether they saw plaintiff's car before it was struck. The motorman said he did not see plaintiff's truck until it was within 5 feet of him; that plaintiff was running at 40 miles an hour; that the street car as it approached Wagner avenue was running at 8 miles an hour; that when he pulled the reverse to check the street car, the fuse blew out. There was expert testimony that the fuse blew out, or would blow out, only when and because the car was going at a speed of as much as 25 miles an hour when it was attempted to be suddenly stopped. The testimony as to the distance which the car ran and pushed plaintiff's truck after the collision varied. The statement of the motorman was 25 feet. Several others estimated it at 100 feet or more. The motorman did not testify that he made an effort to check the speed of the street car before the time he saw the plaintiff, and then, by his effort to check it suddenly, caused the fuse to blow out. According to the motorman's own testimony, he first saw the plaintiff's machine 'when it was about 5 feet away from my car on the east side.' He also said:
This sufficiently shows the general outline, and the evidence tending to show that the street car was running at a high rate of speed as it approached the crossing, at the point where plaintiff said he first saw it, and also nearer to the crossing. The issue of fact stressed upon the trial, and also here as the...
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