Pinkard v. Wells
| Decision Date | 06 February 1923 |
| Docket Number | No. 17480.,17480. |
| Parties | PINKARD v. WELLS. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.
"Not to be officially published."
Action by John R. Pinkard against Rolla Wells, Receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Chas. W. Bates, T. E. Francis, and Alva W. Hurt, all of St. Louis, for appellant.
Joseph Reilly, of St. Louis, for respondent.
This is an action for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of the defendant in the operation of defendant's street car by reason whereof the car came into collision with a wagon in which plaintiff was riding. The assignments of negligence in the petition are predicated upon (1) the humanitarian doctrine and (2) the violation by defendant of the "Vigilant Watch Ordinance" of the city of St. Louis. The answer is a general denial, coupled with pleas of contributory negligence. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $1,100, from which the defendant prosecutes the appeal before us.
The evidence shows that on October 19, 1919, plaintiff was driving a "single-horse spring wagon," drawn by a mule, eastwardly on Finney avenue, a public street extending east and west in the city of St. Louis, a short distance east of Vandeventer avenue, a public street extending north and south, intersecting Finney avenue at right angles. Upon Finney avenue defendant maintained two street car tracks; west-bound cars being operated on the north track, and east-bound cars on the south track. According to plaintiff's testimony, he was driving his mule and wagon eastwardly on the south side of Finney avenue near or upon defendant's south or east-bound track when one of the reins or lines which he held in his hands, the "right line," became detached from the mule's bridle; that plaintiff thereupon tried to stop the mule, both by calling to him and by pulling upon the left rein, but that the mule continued forward, veering to the left, i. e., north, and pulled the wagon upon defendant's west-bound track. Plaintiff says that the wagon was then "straddling the south rail of the west-bound track." Plaintiff's further testimony is that when the wagon had come into this position on the west-bound track plaintiff saw defendant's west-bound street car approaching on that track about 250 feet away, whereupon be began to signal with his hands to defendant's motorman, and to call to the motorman to stop the car, but that the car continued forward and struck the wagon, throwing plaintiff therefrom to the street and injuring him.
There is testimony in plaintiff's behalf to the effect that defendant's street car was proceeding at the rate of 15 or 20 miles an hour, and testimony corroborating that of plaintiff to the effect that plaintiff waved his hands and called to the motorman to stop. An expert witness for plaintiff testified that the car, under the circumstances, could have been stopped, if its speed was 15 miles per hour, in about 40 to 45 feet, and that, if Its speed was 20 miles per hour, it could have been stopped in 45 to 50 feet. Plaintiff also read in evidence the Vigilant Watch Ordinance of the city of St. Louis, as follows:
The testimony of defendant's motorman tends to show that he first saw plaintiff's mule and wagon when it was perhaps 75 or 100 feet from him, at which time the mule and wagon were on the east-bound track, but that the mule was within 25 or 30 feet of the car when he began to turn to the north upon the west-bound track, and that thereafter the witness was unable to stop the car, which, he said, was proceeding at about 8 or 10 miles per hour. For defendant there is testimony tending to show that plaintiff dropped the right rein, and by pulling upon the left rein caused the mule to go upon the west-bound track.
In the course of the cross-examination of plaintiff defendant's counsel asked him what was the occasion for his pulling on the left rein, thus causing the mule and wagon to come upon the west-bound track. Pla...
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Fagan v. Wells
...though they might believe that he was guilty of contributory negligence in driving upon the tracks. So we recently held in Pinkard v. Wells (Mo. App.) 249 S. W. 424. It is argued for respondent that there is no evidence of contributory negligence on the part of plaintiff, and that therefore......
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