Roseman v. United Rys. Co. of St. Louis

• Decision Date: 06 February 1923
• Docket Number: No. 15775.,15775.
• Parties: ROSEMAN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

251 S.W. 104

ROSEMAN v. UNITED RYS. CO. OF ST. LOUIS.

No. 15775.

St. Louis Court of Appeals. Missouri.

February 6, 1923.

Rehearing Denied May 26, 1923.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

"Not to be officially published."

Action by Edward Roseman against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.

Charles W. Bates, T. E. Francis,. and Alva W. Hurt, all of St. Louis, for appellant.

C. J. Anderson and Earl M. Pirkey, both of St. Louis, for respondent.

BRUERE, C.

This is a suit for damages for personal injuries sustained by plaintiff, respondent, in a crossing collision between a team and wagon driven by plaintiff and a street car operated by defendant. Upon a trial before a jury there was a judgment for plaintiff, from which defendant has appealed.

The petition charges several acts of negligence upon the part of the plaintiff, but all were abandoned save the humanitarian doctrine, upon which the case was submitted to the jury. The answer is a general denial coupled with a plea of contributory negligence, on which issue was joined by reply.

At the close of the testimony the defendant offered a peremptory instruction in the nature of a demurrer to the evidence, which the court refused to give, and now complains that error was committed in the denial of its offer.

Summarized from the record, the facts, so far as they are pertinent to the question raised, are these: The collision occurred at the intersection of Montgomery street and Glasgow avenue in the city of St. Louis. The defendant maintains a double-track street car line on Glasgow avenue. The eastern track is used for north-bound cars. Glasgow avenue runs north and south and crosses Montgomery street at right angles. Montgomery street is 36 feet wide. The distance from the curb line on the east side of Glasgow avenue to the east rail of the northbound track is 10 feet 10½ inches, and the distance between said curb and the building line on the east side of Glasgow avenue is 11 feet and 10 inches. The street car track is 4 feet 10 inches wide. North-bound cars in crossing Montgomery street run on a down grade.

Regarding the manner in which the collision occurred, plaintiff testified that he was driving a team, attached to a bread wagon, west on the north side of Montgomery street; that when he approached Glasgow avenue and reached a point about even with the building line, on the east side of said avenue, he saw the street car about 500 feet distant approaching from the south and traveling between 30 and 40 miles an hour; that his horses at that time were upon the northbound track on Glasgow avenue and traveling 5 of 6 miles an hour;. that he thought he had plenty of time to cross, but before he could do so the hind wheel of the wagon was struck by the car, and he was thrown to the street and injured; and that the car ran about 100 feet after the collision. On cross-examination he stated that when he reached the building line on the east side of Glasgow avenue he looked and saw the car coming so fast that it was too late for him to turn to the side. He further testified that when the wagon was hit it was torn from the horses I and thrown on the sidewalk on the east side I of Glasgow avenue.

Raymond W. Joyce, a witness for plaintiff, testified that he was sitting in the third seat from the front end of the car in question, when he heard a crash and then saw a wagon carried along at the front end of the car; that the wagon was struck about the center and partly turned over; and that the car ran about 100 feet after the collision.

Allen Gray, a passenger on the street car and a witness for the plaintiff, testified that his attention was first attracted by a shower of glass in the car, and he then looked forward and saw that a bread wagon had been struck and was being carried along in front of the car; that the car was running 32 or 35 miles an hour and ran about 100 feet after striking the wagon.

The motorman in charge of the street car in question testified on behalf of the defendant that his car was running north on Glasgow avenue at the rate of 12 miles per hour, and when he was approaching Montgomery street he sounded his gong freely; that when he first saw the horses they were just "breaking out of the building line" on the east side of Glasgow avenue and traveling west, in the middle of Montgomery street, at a fast trot; that at that time the street car was about 15 feet south of Montgomery street, and the horses were about the same distance from the north-bound track; that as soon as he saw the horses' heads he applied the brakes and reversed the car, but struck the wagon, near the front wheels, before he could stop; that the impact knocked off the overhead, so that he had no power to control the reverse; and that the car slid on a wet and slick rail about 75 feet before it stopped.

Henry C. Baker, a witness for the defendant, testified that he was a passenger on the car; that when the car reached Montgomery street he was looking forward, "when all at once" he saw two horses traveling west on Montgomery street at a fast trot; that when he first saw the horses they were not in the north-bound track on Glasgow avenue, but "off on the side," and that they got on said track immediately in front of the car; that the car missed the horses, which kept on going west, but struck the front part of the wagon; that the car was running from 12 to 15 miles an hour at the time of the accident and was stopped in a little less than twice its length. Witness further testified that as soon...