Powers v. St. Louis Transit Company
| Decision Date | 19 March 1907 |
| Citation | 100 S.W. 655,202 Mo. 267 |
| Parties | JOHN POWERS v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John A. Blevins Judge.
Affirmed.
Boyle & Priest, Edward T. Miller and George T. Priest for appellant.
(1) The court erred in overruling defendant's demurrer to the evidence. When the evidence conclusively shows that the negligence of the injured party alone caused the injury, or when the evidence fails to disclose any negligence on the part of defendant, a demurrer to the evidence should be sustained. The failure to look and listen before stepping on railway tracks for the approach of a car, or stepping on railway tracks immediately in front of a moving car, is such negligence on the part of plaintiff as will bar a recovery. Boring v. Railroad, 194 Mo. 541; Schmidt v Railroad, 191 Mo. 215; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Ries v. Railroad, 179 Mo. 1; Markowitz v Railroad, 186 Mo. 350; Hornstein v. Railroad, 195 Mo. 440; Boring v. Railroad, 194 Mo. 541. The demurrer to the evidence should have been sustained for two reasons: first, because the evidence conclusively shows that the injury to plaintiff's wife was caused by her own negligence in not looking for and in stepping upon the tracks immediately in front of defendant's car; secondly, because the evidence fails to establish any negligence on the part of defendant. (2) The court erred in giving plaintiff's instruction 2. The instruction is erroneous because it is based upon facts not in the evidence and because it rests upon inference and conjecture. There is no evidence that deceased saw the approach of defendant's car. The testimony on behalf of plaintiff upon the question whether she looked or not is furnished by the motorman, and by him alone. It was to the effect that she did not look. He was positive about that. His being the only testimony on behalf of plaintiff upon this issue, plaintiff is bound absolutely by it. Reno v. Railroad, 180 Mo. 483. The instruction is erroneous for the further reason that there is no evidence that plaintiff could have gotten across the track in safety if the car had been running at the rate of eight miles an hour. As to that question it all rests upon conjecture and inference. There was no testimony as to how fast she was going or how fast she would have to walk to get across the track to avoid a car running at eight miles an hour, and no evidence how far in front of the car she would have to start to cross, to get across safely, if the car had been running at eight miles an hour.
A. R. Taylor for respondent.
(1) The law is that if a pedestrian is about to cross a public street, and looks and sees a car at a distance away sufficient to allow the pedestrian a safe passage if the car shall not be run faster than the law or ordinance permits, and the pedestrian does not know, or in the exercise of ordinary care would not know, that the car was run at a speed in excess of the lawful rate, then he or she is guilty of no negligence in proceeding to cross the street using ordinary care and expedition in doing so. Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo. 188; Eckhard v. Railroad, 190 Mo. 613. (2) The law presumes in favor of a person injured that he or she was exercising ordinary care, and whilst this is a rebuttable presumption, it is upon the tortfeasor to rebut it by evidence sufficient to overcome the presumption. In this case the evidence produced by defendant to rebut this presumption is flatly contradicted by the evidence for plaintiff. Thus, defendant's evidence to rebut the presumption is that its servants gave warning by bell -- slowed down the car -- hallooed. The evidence for the plaintiff tended to prove the contrary, so that the presumption of care remained to be considered by the jury. Buesching v. Gas Co., 73 Mo. 233; Weller v. Railroad, 164 Mo. 180; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, 190 Mo. 613; Rapp v. Railroad, 190 Mo. 144; Goff v. Railroad, 199 Mo. 694. (3) It is the settled law of this State that although a person may, through his or her negligence, be in a position of peril, yet if the party inflicting the injury saw the party in peril, or by the exercise of ordinary care, would so have seen the peril of the party, and thereafter could, by the exercise of the care required by law, have averted the injury and neglected to do so, then in that event the party inflicting the injury is liable, notwithstanding the negligence of the injured party. After a gigantic struggle throughout the courts of this country, the result is as declared above. Reardon v. Railroad, 114 Mo. 406; Chamberlain v. Railroad, 133 Mo. 599; Klockenbrinck v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707; Goff v. Railroad, 199 Mo. 694. This case was tried absolutely and precisely in accord with the authorities above cited. The instructions followed the announcements of the above-cited cases, and this case we submit is free from criticism, if the Riska case, the Eckhard case, the Scullin case, the Goff case, and the other cases cited are the law of this State.
Plaintiff, the husband of Mrs. Maggie Powers, deceased, prosecutes this action under section 2864, Revised Statutes 1899, to recover five thousand dollars damages for the killing of his wife, by reason of the negligence of the defendant's employees 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 ninety feet south of Rutger street, in the city of St. Louis, when defendant's servants, its motorman and conductor in charge of its south-bound 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 eight 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 eight miles per hour, towit, from fifteen to twenty 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 five thousand dollars according to the statute in such cases. Wherefore, plaintiff prays judgment for five thousand dollars.
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 five thousand dollars. 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 ninety to one hundred 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...
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