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

• Decision Date: 17 March 1904
• Parties: ROENFELDT v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

79 S.W. 706

180 Mo. 554

ROENFELDT v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

March 17, 1904

Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.

Reversed.

McKeighan & Watts and Robert A. Holland, Jr., for appellant.

The court erred in refusing to give, at the close of plaintiff's evidence and at the close of all the evidence, an instruction in the nature of a demurrer to the evidence, asked by defendant: (a) Because there was no evidence of any negligence on the part of defendant. State v. Brooks, 99 Mo. 137; Feary v Railroad, 162 Mo. 75; Erwin v. Railroad, 68 S.W. 91; Holmes v. Ledding, 69 S.W. 323. (b) Because the evidence shows conclusively that the injuries complained of by plaintiff were directly due to his own negligence. Payne v. Railroad, 136 Mo. 534; Yancey v Railroad, 93 Mo. 435; Kelsey v. Railroad, 129 Mo. 369; Lenis v. Railroad, 76 Mo. 86; Culbertson v. Railroad, 140 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Maxey v. Railroad, 113 Mo. 1.

Wm. R. Gentry for respondent.

The demurrer to the evidence was properly overruled. The cases cited by appellant to show that the demurrer should have been sustained do not apply. The facts in all of them are radically different from those in the case at bar. There is not a single case among those cited by appellant under this heading where the evidence showed or even tended to show that the car or train could have been stopped after plaintiff was in a position of danger, except the Culbertson case, and there the preponderance of the evidence was to the effect that it was impossible to stop the car, because plaintiff suddenly whipped up his horse and dashed into a place where the car could not pass him, when he could have gone to the left and been safe. The plaintiff was entitled to have the case submitted to the jury. Schafstette v. Railroad, 74 S.W. 826; Klockenbrinck v. Railroad, 72 S.W. 900; Morgan v. Railroad, 159 Mo. 262.

OPINION

VALLIANT, J.

Plaintiff was driving in a wagon along Twentieth street, crossing the tracks of defendant's street railroad at the intersection of Twentieth and Wash streets, when his wagon was struck by a car of defendant and he was thrown out and received injuries. This suit is to recover damages for these injuries.

The petition alleges that the defendant negligently caused its car to collide with the wagon and that the defendant's servants in charge of the car saw, or by the exercise of ordinary care could have seen, "the plaintiff as he was crossing Wash street and as he approached said track and after he drove the horses on the track, and saw or by the exercise of ordinary care could have seen the plaintiff after he was in a position of peril, and by the exercise of ordinary care could have avoided striking said wagon and injuring plaintiff after his position of peril was known to defendant by its agents and servants in charge of said car, or could by the exercise of ordinary care have been known," etc., yet they failed to exercise such care, and that failure contributed to cause the injuries of which the plaintiff complains.

The petition then sets out the city ordinance requiring that the servant of a street railroad company in charge of a car, "shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on its track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible," and states that the servants of the defendant on this occasion failed to perform the duty required by that ordinance and that that failure contributed to the injury complained of.

The answer was a general denial and a plea that the plaintiff himself was guilty of negligence which directly contributed to his injuries.

Reply, general denial.

The testimony on the part of the plaintiff tended to show as follows:

Twentieth street runs north and south, Wash street crosses it running east and west. Defendant maintains a double-track street railroad on Wash street; the north track is for defendant's west-bound cars, the south track for the cars east-bound.

The plaintiff was driving a two-horse team to a wagon loaded with barley. His course was north on Twentieth street. The grade on Twentieth street from south to north is a decline of three and three-tenths per cent for a distance beginning forty-five feet south of defendant's south track, to that track, then it is level across the two tracks, thence north it is a slight up-grade. Going west on Wash street from Nineteenth to Twentieth (as the car in question was going), there was an up-grade of one and three-tenths per cent. Twentieth street at its intersection with Wash is 36.4 feet wide from curb to curb; the sidewalk on the east side is 12 feet wide; there is a building in which is a saloon, on the northeast corner of these streets, which measures 46 feet, 9 inches, along the north line of Wash street; the distance between the two tracks is 5 feet, 9 inches, each track is 4 feet, 10 inches wide; from the south curb line on Wash street to the south rail of the south track is 10 feet, 3 inches; at the southeast corner is a two-story brick house which is set back 21 feet from the south curb. The tracks run straight on Wash street east and west.

The plaintiff was familiar with the situation, he had been driving across those tracks at that point several times a day for several months, and knew how the cars usually ran there. The account that the plaintiff himself gave of the accident was as follows: As he approached Wash street he looked to the east and saw the car coming, it was then two hundred and fifty feet away and was coming very rapidly, thirty miles an hour, and increasing in speed until at the moment of the collision it was going sixty miles an hour. He was driving in a slow walk, not to exceed two miles an hour. When his horses' heads were about to go over the north track the car was fifty or sixty feet from him, he drove steadily along and had almost cleared the track when the car struck the hind wheels of his wagon and turned it over.

"Q. As this car came along you saw it two hundred and fifty feet away from you and you kept right along towards the track, seeing the car coming toward you? A. Yes, sir.

"Q. Why didn't you stop and let the car go by? A. I couldn't stop. I was going down hill and he was going up hill.

"Q. And you thought the car would stop, and, therefore, you took your chances? A. Yes, sir.

"Q. Was the car stopping? A. No, sir.

"Q. You thought it might stop? A. Yes, sir.

"Q. And still you say the car was coming faster and faster? A. Yes, sir.

"Q. And yet you crossed in front of it? A. Yes, sir.

"Q. And when your horses' heads entered on that west-bound track the car was fifty or sixty feet away? A. Yes, sir.

"Q. When you got to this first track, when you saw that this car was coming faster and faster, why didn't you stop and let it go by -- not drive right in front of it? A. I couldn't stop it any more.

"Q. Why didn't you drive it in such a way that when you saw a car coming you could stop it? A. There was no brake on the wagon.

"Q. Why didn't you drive your wagon so that when you saw a car you could stop? A. I couldn't stop it any more.

"Q. In other words, whenever you drove down there you had had to take your chances? A. I'd been across if they had slacked up anyways, but they still came faster.

"Q. When you got down here to this crossing and saw this car you could have stopped your wagon then? A. It was near the crossing when I saw it.

"Q. When you got near the crossing you could have stopped it then? A. Yes, sir.

"Q. When you saw this car coming sixty miles an hour why didn't you stop? A. I thought I could get across easy enough. I could have if it slowed up.

"Q. You thought you could get across? A. Yes, sir.

"Q. Did you have a brake for that wagon? A. No, sir.

"Q. When you got to the first track the grade is even? A. Yes, the tracks are about level.

"Q. And when you got across the tracks the grade goes up? A. Yes, sir."

The testimony of the other witnesses in plaintiff's behalf was to the effect that the car was going at the rate of nine or ten miles an hour. It was admitted by the parties that it was lawful for defendant to run its car at a rate not to exceed ten miles an hour; the testimony for defendant also was that the car was running at the rate of nine or ten miles an hour, and that that was the usual speed of defendant's cars in that part of the city.

The plaintiff's witnesses differed in their several estimates as to the distance the car was from the point of contact when the horses of plaintiff stepped on the north track, the estimates ranging from fifty to a hundred and eight feet.

Nathan Daly saw the collision from the northwest corner of the streets. He said that when the horses reached the south crossing, that is, the crossway from the southeast to the northwest corner, the car was at Nineteenth street, and when the horses reached the north track the car was thirty-five feet east of the east crossing. He also said that at that time there were two men on the front platform, one the motorman, and the other a man who was being taught to be a motorman; when he first saw them the motorman was standing behind the one who was being instructed, and when the car got within thirty-five feet of the east crossing the front man turned around and the two began talking and neither looked to the front.

John A Long who was a passenger in the car, and was noticing the wagon, estimated that at the moment the plaintiff started to drive over the south track the car was two hundred and fifty feet distant; when the horses stepped on the north track the...