Rissler v. St. Louis Transit Co.

• Decision Date: 16 May 1905
• Citation: 87 S.W. 578,113 Mo. App. 120
• Parties: RISSLER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

87 S.W. 578

113 Mo. App. 120

RISSLER v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

May 16, 1905.

STREET RAILROADS—INJURIES AT CROSSINGS— DUTY TO LOOK AND LISTEN—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY — LAST CLEAR CHANCE.

1. A person injured in collision with a street car at a crossing cannot recover unless he looked and listened for approaching cars as he was about to cross the track.

2. Plaintiff, before leaving the curb to cross a street on which was a street car track, looked and listened for cars without seeing any. His view from the curbstone only extended 150 feet in the direction from which the car by which he was struck approached, being obstructed by a wagon. While walking a distance of about 14 feet before reaching the track, he made no further effort to ascertain if it was safe to cross, and was struck by a car approaching at a rate of speed exceeding that specified by a city speed ordinance. Held that, plaintiff being entitled to assume that an approaching car would be run at a lawful rate of speed, the question of his contributory negligence was for the jury.

3. Where, in an action for injuries to a pedestrian in a collision with a street car at a crossing, there was no evidence showing that the motorman had reasonable cause to believe there was danger of striking plaintiff in time to check the car before it reached him, but he was entitled to assume that plaintiff would not go on the track in front of the car, the doctrine of last clear chance did not apply.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by W. B. Rissler against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Thos. B. Harvey and Johnson & Martin, for respondent.

Opinion.

GOODE, J.

Respondent was struck and injured by a street car a little after nightfall. The accident happened on Washington avenue, in the city of St. Louis, at the intersection of that thoroughfare with Leffingwell avenue. Rissler was hurt while attempting to pass from the southwest to the northwest corner of the intersecting streets. While standing on the curb of Washington avenue, and before starting forward, he looked to the west for a car, but neither saw nor heard one. He testified that his view of the track was unobstructed for half a block (about 150 feet), but at that distance was intercepted by a laundry wagon standing against the curb at the third house to the left. If the wagon had not intervened, he would have had a clear view for two blocks, or 600 or 700 feet. After taking the precaution to look when on the curb, Rissler walked forward without again looking until he was on the near railway track, when, just an instant before the car struck him, he saw it, but too late to get out of the way. If Rissler had paid attention to his surroundings, he could have both seen and heard the approach of the car from the west after he had taken a step or two from the curbstone, and have stopped until it passed. There was testimony besides his own that he walked straight ahead, apparently in a reverie. When struck, he was in the center of the south track, which shows he had just stepped in the pathway of the car. He said that for some reason he looked up an instant before the car hit him, and saw it 20 or 30 feet away, but too late to avoid it. The acts of negligence charged in the petition are failure of the motorman to sound the bell, running at too high speed, and neglecting to keep a vigilant watch for persons and vehicles and stop the car in the shortest time and space possible on the first appearance of danger to the respondent. There was evidence conducing to prove that the car's speed was beyond the ordinance limit of eight miles an hour, and some evidence that, if the car had been running at that rate, it could have been stopped in about twenty feet. The answer filed was a general denial and a special defense that respondent contributed to his injury by going on the track without looking or listening, when, if he had taken those precautions, he would have escaped injury; further, that when he got on the track the car was so close that a collision was bound to happen. We deem it unnecessary to set out all the instructions in the case, but will notice those material to this appeal. The trial resulted in a verdict for the respondent for $1,500.

Among other instructions, the railway company requested one directing the jury to return a verdict for the appellant, and we have been in grave doubt whether that direction should not have been given. The rule in this state is that a party about to cross street railway tracks must look and listen for approaching cars before doing so, and will be denied a recovery for an injury due to a collision with a car if the duty is omitted, when, by performing it, the accident could have been prevented. Murray v. Transit Co., 176 Mo. 183, 75 S. W. 611; Id., 83 S. W. 995; Hickman v. R. R., 47 Mo. App. 65; Smith v. R. R., 52 Mo. App. 36; Sonnenfeld Millinery Co. v. R. R., 59 Mo. App. 668. This is on the theory that a person hurt under those circumstances is guilty of negligence directly contributing to the injury. No doubt exceptional cases arise in which the injured person would be entitled to a verdict notwithstanding his negligence, because the latter might be so remote as to constitute no contributing cause of the accident. In the present case Rissler, according to his own testimony, complied with the rule to some extent by looking and listening for cars, before he left the curbstone. His view from the curbstone only extended 150 feet west, he said, and from there was obstructed by a laundry wagon. Afterwards he walked a distance variously estimated by the witnesses at from 9 to 14 feet before he reached the car track, and during that interval made no further effort to ascertain if he could cross in safety. Now, it...