Rodan v. St. Louis Transit Co.

• Decision Date: 27 November 1907
• Citation: 105 S.W. 1061,207 Mo. 392
• Parties: RODAN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

105 S.W. 1061

207 Mo. 392

RODAN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. APPEAL — REVIEW—DISCRETION OF LOWER COURT—GRANTING NEW TRIAL.

The granting of a new trial rests in the sound discretion of the trial court, and its action will not be disturbed on appeal, unless it appear that the discretion has been abused by arbitrary or improvident exercise.

2. TRIAL — INSTRUCTIONS—IMPEACHING PARTY'S OWN WITNESS.

In an action for death from being struck by defendant's street car, where one of plaintiff's witnesses, the only eyewitness to the accident, testified that deceased walked onto the track, paying no attention to the approaching car, because there was nothing to attract attention to it, the gong not being sounded, and his testimony was impeached on cross-examination by showing that he made contradictory statements before the coroner, it was error to charge for plaintiff that the jury might presume that deceased looked and listened for the car, unless they found that he did not look and listen, since it is in effect an impeachment by plaintiff of her own witness.

3. SAME—REBUTTABLE PRESUMPTIONS.

The charge was erroneous since, while there was a presumption that decedent looked and listened for the car, it was of a rebuttable character, and, there being evidence that he did not look and listen, the presumption failed.

4. EVIDENCE—"PRESUMPTION."

Presumption is a principle of law by which facts not established by positive evidence are inferred from circumstances.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Mary F. Rodan against the St. Louis Transit Company for the death of Philip Rodan. Judgment for defendant, and plaintiff appeals. Affirmed.

Campbell & Thompson, for appellant. Boyle & Priest, Morton Jourdan, and Edward T. Miller, for respondent.

LAMM, J.

Plaintiff, widow of Philip Rodan, sued for statutory damages for his alleged wrongful death at the hands of defendant. Recovering a judgment for $5,000 at a jury trial, presently the trial court, on motion, ordered her judgment set aside. She appeals from that order.

Her right of action is grounded, first, on the general charge that as her husband was passing between 6 and 7 o'clock on the morning of the 28th of November, 1903, over the crossing of Walton and Delmar avenues, public streets in St. Louis, the defendant's servants in charge of an electric car running west on Delmar avenue so negligently and carelessly ran, controlled, and managed said car as to cause it to run against said Rodan, thereby injuring him so that he died; second, that defendant, through its servants in charge of its said car, negligently and carelessly ran it over the crossing of a public street at a great and dangerously high rate of speed, and without giving any warning or signal by bell or otherwise of the car's approach, thereby contributing to cause the death of plaintiff's husband; third, that there was a speed ordinance in force in St. Louis limiting the speed of the car in question at the time and place to a maximum of 15 miles per hour, and that, in violation of this regulation, defendant was running its car in excess of 15 miles an hour, and thereby contributed to cause the death of her husband; and, fourth, that there was an ordinance in force in St. Louis at the time known as the "Vigilant Watch Ordinance," and that defendant violated the terms of this ordinance in specified particulars, and thereby contributed to cause the death of her husband. The answer was a general denial and a plea of contributory negligence in going upon the track directly in front of a moving car. The reply put in issue the defense of contributory negligence.

Plaintiff's case on the facts is this: A 60-foot street in St. Louis, known as Delmar avenue, runs practically east and west at the point of the accident. Walton avenue runs north and south, and intersects Delmar at that point, practically at right angles. Standing at this intersection, one can see east on Delmar say two blocks to Taylor, and west say three blocks to Kings' Highway. Going west, Delmar approaches Walton on a downgrade; from thence on the grade is up. All the evidence tends to show that Philip Rodan had either come south on the west side of Walton, or was standing at the northwest corner, and from thence he apparently passed south, on the west side of the intersection, directly across defendant's track laid on Delmar. From his starting point (the curb) it was 17 feet to the north rail of the track on which the car ran. Two tracks were laid on Delmar—one for west-bound and one for eastbound cars. The south track, as we infer, was for the latter. Rodan was struck by a west-bound car, and therefore on the north track. He was unconscious when picked up, bleeding from a gaping wound in his head, and presently died. The time was between half past 6 and a quarter to 7 on the morning of November 28, 1903. No witness saw Rodan that morning before he was struck, save one Joe Edwards, on whose testimony the case somewhat turns, and whose testimony will hereafter be set forth in detail. A good many passengers were aboard, among them several officers. The speed of the car was variously estimated, some gauging it by the expression "pretty fast," others by the expression "terrible rate of speed," and still others, who seem qualified to speak, putting it at 25 miles an hour. Evidence was put in tending to show that the car was equipped with brakes and a reverse lever, and that it could have been stopped, going at 25 miles an hour, by the use of brakes and without the reverse in 135 feet, and with the reverse in 100 feet. Going 15 miles an hour, it could have been brought to a standstill by the brakes alone in from 75 to 80 feet, and with the reverse in from 50 to 55 feet. As to signals, there was evidence put in tending to show that no gong was rung or bell sounded as the car approached the intersection. This character of testimony varied as usual. Some of the witnesses were paying no attention to signals, and heard none. Others were alert and heard none. The state of light may be got at from a variety of descriptions. For instance there was testimony that the gas lamp was still burning at the northwest corner of the intersection at the time he stepped from that corner. One witness said: "It was pretty light. It was not very dark." Another said: "It was good dawn day. One could see a man quite a distance. * * * Well, I judge you could see a man a block off." One witness, a passenger, testified that when the car finally stopped, nearly a block beyond the intersection, he stood up, and, looking back out of the rear of the car, saw Rodan lying in the street, and could tell within an "inch" at that time in the morning where he was lying—"had a plain view." And it may be said that it was substantially shown by the preponderance of the evidence that the outline, the form, of a man, could be distinguished at that distance, to wit, from 150 to 300 feet, though one witness described the morning as "hazy," and another as "misty." It was in evidence, too, that milkmen were delivering milk to their morning customers at the time. It was shown that the collision produced a jar to the car and shivered and smashed the glass in its vestibule, the broken bits clattering down over the floor. This crash or jar was heard, or felt, by the passengers, and heard by others not passengers, who did not see the collision. The motorman was riding in the vestibule, and all the testimony tends to show it was shut off from the body of the car and the curtains were down over the windows in the partition, so that passengers could not see directly west; that is, out in front. Whether the curtains were down at the side windows so as to interrupt the view out and in front therefrom remains undisclosed from any witness, save Edwards, who claims to have looked out of the side windows towards the front, and to have seen Rodan. Whether the car was lit up remains in doubt; some witnesses hazarding a guess that it was, and others having no recollection one way or the other. The distance the car ran after striking Rodan is put by some at a block; by some at something less; by others at about half a block; and some say it ran two or three car lengths. No witness felt the reverse going on before the collision; and the evidence tends to establish the fact that the car was not checked prior to the collision and the crash. Exclamations were put in from the motorman as a part of the res gestæ, thus: "A man run right in front of my car"; and a man "stepped into my car." There was evidence that Rodan was knocked 75 feet, other evidence puts it at 50 feet, and still other evidence at 30 feet. One witness (a bystander) testified that, when he heard the crash, he lifted his eyes, and saw "something rolling like a ball" for 25 feet. It was shown that Rodan was knocked west, and south over all the tracks, and lay a few feet from the south rail of the east-bound track on Delmar.

To further make out her case, plaintiff put one Joe Edwards on the stand, who testified he got on the car somewhere east of Walton, and was on his way to his work at a livery stable. He heard no gong after the car left Taylor. As this witness either assigns himself the role of the only eyewitness, or toys with that role as an understudy; and, as stress is laid upon his testimony by the trial court in sustaining the motion for a new trial, it will serve a useful purpose to let portions of his testimony run by questions and answers, thus: "Q. Where were you sitting? A. Sitting about three seats from the front end of the car. Q. And the curtain was raised in front of you? A. No, sir; the curtains direct in front of me were down. Q. Could you see out in front? A. Yes, sir; I could see from the side window. Q. Could you see from the side and front? A. Yes, sir. Q. You were on the third seat from the front? A. Yes, sir. * * * Q. Did you see...