Reno v. St. Louis & Suburban Ry. Co.

Decision Date10 February 1904
Citation79 S.W. 464,180 Mo. 469
CourtMissouri Supreme Court
PartiesRENO v. ST. LOUIS & SUBURBAN RY. CO.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Mary Reno against the St. Louis & Suburban Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

McKeighan & Watts and Robt. A. Holland, for appellant. Wm. M. Kinsey and A. R. Taylor, for respondent.

ROBINSON, J.

This is an action to recover damages for personal injuries, alleged in the petition to have been received by the plaintiff in consequence of the negligence of the defendant in running its street cars at a high and reckless rate of speed, and in excess of that allowed by the ordinances of the city of St. Louis, and without ringing the bell, sounding the gong, or giving any warning of the car's approach that ran over and injured plaintiff. The petition further charges that the defendant violated the city ordinances requiring those in control of the movement of the cars to keep a vigilant lookout for persons approaching the track upon which they were being operated, and to stop the cars in the shortest time and space possible upon discovering a person in a dangerous situation. The answer was a general denial and a plea of contributory negligence. The trial resulted in a verdict for the plaintiff for $4,000, from which defendant has appealed, and the case was sent to this court because the constitutionality of the three-fourths jury law was challenged by appellant, and had not, when this case was heard, been passed upon by this court.

This accident occurred about half past 9 o'clock on the evening of November 12, 1899, as plaintiff attempted to walk in a diagonal direction across Wash street, between Fourteenth and Fifteenth streets, in the city of St. Louis, at a point a short distance west of the west crossing of Atchison Place and Wash street. As this appeal will be determined upon the question of the propriety of the court's action in submitting plaintiff's case to the consideration of the jury, we will give in full the testimony of the plaintiff as same is presented in appellant's abstract of the testimony, and as supplemented in respondent's additional abstract of the testimony filed in this cause.

Appellant's abstract of plaintiff's testimony is as follows: "Witness thinks she is fifty-five years old, but does not remember her age. On the 12th of November, 1899, she lived at the southeast corner of Fifteenth and Wash. Had lived there fifteen or sixteen years. On the evening of said date she left her house, and went to the Carr Park Church, on Carr street. She had returned home from church about nine o'clock. Afterwards she left the house again to go to the saloon on the northeast corner of Atchison Place and Wash street for a glass of beer and some lunch. She had a little bucket in her hand. Witness went out of her gate, and walked eastwardly on the sidewalk on the south side of Wash street a little distance; then she started to cross the street in a northeastwardly direction. The saloon was on the northeast corner of Wash street and Atchison Place. Witness started from the south sidewalk towards the saloon in a diagonal direction. Witness, before she left the sidewalk, looked west and looked the other way. Witness did not see any car coming from the west, and did not hear a bell ring. Witness did not know any car was coming from the west before she was struck. When she was struck, witness became unconscious. When witness came to her consciousness, she found her right thigh was broken and her left foot was badly injured. The foot was amputated above the ankle at the hospital. This operation was done by Dr. Nietert. Witness remained in the hospital about three weeks, and was then taken to her daughter's house, in Carondelet, where she has stayed ever since. One rib was also broken, and witness' head was cut, and her hand was injured. Before this accident witness was a pretty stout woman, and did all her own work, washed and ironed, and kept her house in order."

Plaintiff's testimony, as found in respondent's additional abstract of the record, is as follows: "Q. (by Mr. Taylor): Now I will ask you, before you left the sidewalk whether you looked to see whether a car was coming from the west—whether you looked west to look for a car. A. I looked west, and looked the other way, both. Q. You looked both ways? A. Yes, sir. Q. Now, while you were walking down there to the place where you started to go across the track, did you look again? A. Yes, sir. Q. Did you see any car coming from the west when you looked? A. No, sir; I never saw any car nor heard a bell or nothing. Q. Did you hear or know that any car was coming from the west before you was struck? Didn't you know the car was coming until it struck you? A. No, sir; I never saw it. Q. (by Judge Barclay): Now, please tell these gentlemen here just exactly what you did from the time you stepped from your gate until you were injured. A. I couldn't tell much. I walked out of the gate, and went to cross over toward the track, and before I got there I got caught by the car. Q. Now, as you were going across the street, as I understand your statement, you noticed this car coming from the east around the corner? A. Yes, sir. Q. The curve is a block from there, at Fourteenth and Wash, isn't it? A. Yes, sir. Q. Now you noticed the car coming? A. Yes, sir. Q. What did you say about this car which was coming that you noticed? A. I heard the bell. It was coming from downtown. Q. As it came around the corner, it rang the bell? A. Yes, sir. Q. You heard that? A. Yes, sir. Q. And didn't look in the direction toward the west before you were hit, did you? A. Well, I do not know how I would, but I didn't see the car, nor I didn't hear it. I always look both ways, always did. Q. How far do you think you had started across the street before you noticed this car coming from the east? A. I think I was on the track where the car comes up. Q. From the east? A. Yes. Q. You had crossed the first track then? A. I do not think I was north of the track, but I was going to start over. Q. Which track do you mean now—the track where the car from the east was coming? A. The car going down. Q. You mean downtown? A. Yes, sir. Q. You didn't see the car that was going down? A. No, sir. Q. When you left the pavement, did you then notice the car coming around the corner? A. I noticed the car after I was on the track, and thought I had ample time to cross, and the other happened. Q. But you did not see the car that come by? A. No, sir; I never saw it. Q. When you got hit by this car that came from the west just as you stepped on the track? A. I think so. Q. (by Mr. Taylor): How did you walk when you left the sidewalk up to the time you were hit? A. Oh, I had my usual walk. I don't know as it was just a fast walk or a slow walk."

Mrs. Nelson, a witness called by plaintiff, testified that she saw the car that ran over and injured the plaintiff on the occasion in question, and that no signal of its approach was given, except just as the car approached the Fifteenth street crossing, when the bell or gong was sounded, but that after the crossing was reached and passed, and until plaintiff was struck, no warning or danger signal of any kind whatever was given by the parties in charge of the car. She also says that she saw plaintiff while she was walking eastwardly on the south sidewalk on Wash street, and as she left the sidewalk and started across Wash street in a diagonal direction to the northeast, and that plaintiff did not slow up or slacken her pace at any time after she stepped from the sidewalk to the street until she was struck by defendant's east-bound car, just as she was in the act of stepping upon the track, and that her gait was quite brisk for one of her age. To use witness' exact language upon this point: "It was fast for a person of her age. She was not walking fast because she was a person of age, but rapidly, what I would call for her age."

According to this witness the plaintiff left the sidewalk and started across the street 150 or 160 feet east of the southeast corner of Wash and Fifteenth streets. This witness also testified that she, like the plaintiff, was wanting to cross to the north side of Wash street to reach her point of destination, and although still east 50 feet or more down Wash street from where plaintiff left the sidewalk she says that she maintained her position on the sidewalk in order that defendant's east-bound car, which she had both seen and heard, might pass before she would attempt to cross the street. This witness also says that the car was being run at the rate of 15 miles per hour when it struck the plaintiff; that she did not notice that its speed was slackened in the least until...

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