Rissler v. St. Louis Transit Co.
| Decision Date | 16 May 1905 |
| Citation | 87 S.W. 578,113 Mo.App. 120 |
| Parties | RISSLER, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. H. D. Wood, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Boyle Priest & Lehmann, Geo. W. Easley and Morton Jourdan for appellant.
Defendant's peremptory instruction in the nature of a demurrer to the testimony should have been given. Fanning v. Transit Co., 78 S.W. 62; Ries v. Transit Co., 77 S.W 734; Aldrich v. Transit Co., 101 Mo.App. 77, 74 S.W 141; Barry v. Transit Co., 102 Mo.App. 469, 76 S.W. 706; Asphalt Co. v. Transit Co., 102 Mo.App. 469, 30 S.W. 741.
Thos. B. Harvey and Johnson & Martin for respondent.
GOODE, J. Judge Nortoni concurs; Judge Bland dissents from the order remanding the cause and holds it ought to be reversed absolutely.
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 six or seven hundred 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 both have 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. 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 twenty or thirty 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, 83 S.W. 995; Hickman v. Railroad, 47 Mo.App. 65; Smith v. Railroad, 52 Mo.App. 36; Sonnenfeld Millinery Co. v. Railroad, 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 one hundred and fifty 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 nine to fourteen 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 is insisted by the appellant that having looked where his view was obstructed, he was bound to look again before going on the track and ought to be nonsuited on his own admission that he did not. We concede that decisions of that purport can be found, particularly in the Pennsylvania reports; for the courts of that State require a person about to cross a car track to look out for danger at the edge of the track. [Kern v. Railroad, 194 Pa. 75; Burke v. Railroad, 198 Pa. 497; Chrisman v. Railroad, 150 Pa. 180.] There are cases, too, somewhat analogous in other jurisdictions, in which plaintiffs were defeated by the courts on account of their negligence. [McGrath v. R. R., 66 N.J.L. 312, 49 A. 523; Doherty v. R. R., 118 Mich. 209, 76 N.W. 377; Kelly v. R. R., 175 Mass. 331, 56 N.E. 285; Baumann v. R. R., 47 N.Y.S. 1094.] And in this State a man does not discharge his duty to look out for cars before going on a track by looking where his sight is obstructed. But Rissler could see quite a distance, and the evidence leaves some uncertainty as to the width of the driveway between the curbstone and the car track. According to Rissler's testimony when he looked at the curb along a stretch of one hundred and fifty...
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