Powers v. St. Louis Transit Co.

• Decision Date: 05 March 1907
• Parties: POWERS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

100 S.W. 655

202 Mo. 267

POWERS v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

March 5, 1907.

1. TRIAL — QUESTION FOR JURY.

In an action against a street railroad for the death of one run over by a car, if the facts bearing on the question of contributory negligence admit of different constructions and inferences, the question must be left to the jury.

2. STREET RAILROADS — INJURIES TO PEDESTRIAN.

In an action for the death of one run over by a street car, the presumption is that decedent was in the exercise of due care and looked and saw the car.

3. TRIAL — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

In an action for the death of one run over by a street car, the motorman testified that decedent did not "seem to look or notice anything," and the conductor testified that he did not see her look, and the court instructed that if decedent, as she started across the tracks, saw the car, and it was at such a distance as not to imperil her, if not running in excess of the speed prescribed by ordinance, and she did not know it was running at a speed in excess of that prescribed by ordinance, and in the exercise of ordinary care in looking and listening would not have so known, and the car was in fact exceeding the speed mentioned, decedent had a right to cross the tracks, relying on the car being properly run, and that, using ordinary care in doing so, she was not negligent. Held, that in view of the presumption that decedent was using ordinary care, and notwithstanding the testimony of the motorman and conductor, the instruction was not objectionable as based on facts not in evidence and resting on conjecture.

4. STREET RAILROADS — PERSONAL INJURIES — ACTIONS — EVIDENCE — SUFFICIENCY.

In an action for the death of one run over by a street car, evidence held sufficient to sustain a finding that decedent could have crossed the track in safety if defendant's car had been run at the rate prescribed by ordinance.

5. SAME — INSTRUCTIONS.

In an action for the death of one run over by a street car, it was proper to refuse an instruction that the motorman was under no obligation to slacken the speed of his car or stop the same because decedent was approaching the track, but that he had a right to proceed on the assumption that decedent would remain off the track in a place of safety, as the instruction ignored the fact that it was the motorman's duty to slacken the speed or stop the car upon seeing decedent in a place of danger, even though she might have been guilty of contributory negligence at the time.

Appeal from St. Louis Circuit Court; John A. Blevins, Judge.

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

Boyle & Priest, Edward T. Miller, and George T. Priest, for appellant. A. R. Taylor, for respondent.

BURGESS, J.

Plaintiff, the husband of Mrs. Maggie Powers, deceased, prosecutes this action, under section 2864, Rev. St. 1899 [Ann. St. 1906, p. 1637], to recover $5,000 damages for the killing of his wife, by reason of the negligence of the defendant's employés in charge of its car, on the 27th day of November, 1900, at a point on South Seventh street south of Rutger street in the city of St. Louis. The petition alleges, in substance, that defendant, at the times alleged, was a corporation by virtue of the laws of Missouri, and used and operated the railway and car mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis That at said times South Seventh street, at the places mentioned, was an open public street within the city of St. Louis. That plaintiff was the husband of Maggie Powers at the time of her death as mentioned in the petition. That on the 27th day of November, 1900, the plaintiff's wife was lawfully crossing South Seventh street about 90 feet south of Rutger street, in the city of St. Louis, when defendant's servants, its motorman and conductor in charge of its southbound car on South Seventh street, carelessly and negligently, and without using any care to watch for persons on defendant's track, or moving towards it, and in danger of being injured by said car, and without using any care to give any signal by bell or otherwise to plaintiff's wife of the approach of said car, and without using any care to control the movements of said car or stop same to avoid injury to plaintiff's wife, and whilst running said car at a high and reckless speed, and without using any care to control the fender of said car to prevent the plaintiff's wife from being injured by said car, caused and suffered said car to run upon, drag, crush, and kill the plaintiff's said wife. And, for another and further assignment of negligence, the plaintiff avers that, at time of the injury and death of said wife, there was in force within the city of St. Louis an ordinance thereof, by which it was provided that motormen and conductors of street cars should 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 person the car should be stopped within the shortest time and space possible; yet the plaintiff avers that defendant's motorman and conductor in charge of said car failed to keep such vigilant watch, and failed to stop said car within the shortest time and space possible, which violation of said ordinance directly contributed to cause the injury and death of the plaintiff's wife. And, for another and further assignment of negligence, the plaintiff avers that, at the time of the injury and death of his wife, there was in force within the city of St. Louis an ordinance thereof, whereby it was provided that such cars should not be run at a speed in excess of 8 miles per hour in the city of St. Louis; yet the plaintiff avers that at the time of and before said car ran upon and killed his wife, as aforesaid, said car was being run by defendant's motorman and conductor at a speed greatly in excess of 8 miles per hour, to wit, from 15 to 20 miles per hour, in violation of the ordinance of the city of St. Louis, which excessive speed and violation of said ordinance directly contributed to cause the death of the plaintiff's wife. That by the death of his wife, as aforesaid, an action has accrued to the plaintiff to sue for and recover $5,000 according to the statute in such cases. Wherefore plaintiff prays judgment for $5,000. The answer was a general denial and a plea of contributory negligence upon the part of plaintiff's deceased wife, in that she failed to look or listen for defendant's car, and in allowing herself to be placed in a position of danger upon defendant's track when it was too late for those in charge of its car to stop the same and avoid striking her. The reply to the answer was a general denial. The trial resulted in a verdict and judgment in favor of plaintiff for the sum of $5,000. In due time defendant filed motions for new trial and in arrest of judgment, which were overruled, and defendant appealed.

Mrs. Powers, according to the evidence, was walking across Seventh street, from the east to the west side thereof, at a point from 90 to 100 feet south of the intersection of South Seventh and Rutger streets, about 11 o'clock a. m., on the 27th day of November, 1900, and, while crossing the track of defendant, its south-bound car ran upon and so injured her that she died from said injuries three days thereafter. The rate of speed fixed by the ordinance of the city, which was read in evidence, was limited to not exceed 8 miles per hour, while the evidence tended to show that the speed of this car was from 10 to 18 miles per hour. The evidence also tended to show that defendant's motorman saw the deceased when she stepped off the sidewalk and walked across the street towards the track on which the car was moving, and saw her continuously until she stepped upon the track, four or five feet in front of the car, and saw that she was paying no heed thereto. The street was about 50 feet between the curbs, and, as deceased was walking across it diagonally, or in a southwesterly direction, she must have walked about 30 feet between the time the motorman saw her step off the sidewalk and the time she was struck by the car. An ordinance of the city of St. Louis, requiring the motormen and conductors of street cars to 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, was put in evidence, as was also the ordinance prohibiting a higher rate of speed than eight miles per hour. Upon this showing plaintiff rested. Thereupon defendant asked an instruction in the nature of a demurrer to the evidence, which was refused, and defendant excepted.

Mrs. Charles Anderson, in behalf of the defendant, testified as follows: "Q. Where do you live? A. At that time 2839 South Seventh. Q. How long have you lived there? A. I couldn't say how long I had lived there; only a few months. Q. How long have you lived in St. Louis? A. Since 1900. Q. Were you a passenger on the car going south on Seventh street on November 27th? A. Yes, sir. Q. That collided with Mrs. Powers? A. Yes, sir. Q. Do you know where Rutger street is? A. Yes, sir. Q. How was the car running along there? A. Why, I don't think it was running so very fast; running rather slow to me. Q. Was it running slow? A. Yes, sir. Q. Now, tell just what you saw and heard about this accident. A. I was sitting in the rear end of the car, and I never saw the lady at all until they took her out from under the car. Q. The car, you say, was running at a moderate rate? A. Yes, sir. Q. Well, what, if anything, did the motorman do? A. The motorman kept ringing the bell, and he hallooed twice; but I never looked up to see what was happening. Q. How soon was the car stopped after he hallooed? A. It didn't seem but...