Schmidt v. St. Louis Transit Co.

• Decision Date: 08 June 1909
• Parties: SCHMIDT v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

120 S.W. 96

140 Mo. App. 182

SCHMIDT v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

June 8, 1909.

1. STREET RAILROADS (§ 102)—NEGLIGENT OPERATION—EXCESSIVE SPEED.

To support an action for injuries in a collision with a street car, on the ground that the car was running at a greater speed than allowed by ordinance, it must appear that the injury would not have occurred if the car had been running at a speed within the ordinance.

2. STREET RAILROADS (§ 113)—COLLISIONS— NEGLIGENCE.

The fact that an injury, in a collision with a street car running at a speed in excess of the maximum speed fixed by an ordinance, would not have occurred if the car had been running within the speed limit may be proved by collateral facts, and it is not necessary to prove it by direct testimony.

3. STREET RAILROADS (§ 114)—COLLISIONS— NEGLIGENCE—QUESTIONS FOR JURY.

In an action for injuries in a collision with a street car, evidence held to justify a finding that the proximate cause of the accident was the excessive speed of the car.

4. STREET RAILROADS (§ 118)—COLLISIONS— NEGLIGENCE—INSTRUCTIONS.

Where, in an action for injuries in a collision with a street car, the only source of the injury was negligence of defendant and contributory negligence of plaintiff, an instruction authorizing a recovery if defendant's negligence contributed to the injury was erroneous, unless the issue of last clear chance was raised, since if defendant's negligence contributed to that of plaintiff, the case was one of concurring negligence barring a recovery.

5. NEGLIGENCE (§ 61)—CONCURRING NEGLIGENCE—LIABILITY.

One may recover against a defendant for his negligent breach of duty, though his negligence concurred with the negligence of a third person, and each contributed to the injury.

6. NEGLIGENCE (§ 61)—CONCURRING NEGLIGENCE—LIABILITY.

One injured without fault on his part may recover against a defendant whose negligence was not the sole cause of the injury, where the negligent act complained of concurred with an accidental cause, and operated proximately to the injury.

7. NEGLIGENCE (§ 61)—CONCURRING CAUSES —LIABILITY.

One injured by the negligence of another concurring with an act of God, and operating proximately to the injury, may recover therefor.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Virginia Schmidt, executrix of Joseph Schmidt, deceased, against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Boyle & Priest and G. B. Arnold, for appellant. Jos. A. Wright and Edward W. Foristel, for respondent.

NORTONI, J.

This is an action for damages alleged to have accrued to Joseph Schmidt, now deceased, for personal injuries inflicted upon him by defendant's street car. Plaintiff recovered, and the defendant prosecutes the appeal. After trial and judgment in the circuit court, Joseph Schmidt departed this life, and the cause now stands revived in the name of Virginia Schmidt, his executrix. For convenience, we will refer to Joseph Schmidt, now deceased, as the plaintiff. It appears the plaintiff was seated in a one-horse wagon, and had been driving south on the defendant's south-bound track about 6000 South Broadway in the city of St. Louis, when the defendant's south-bound car collided with the rear wheel of his wagon, and inflicted the injuries complained of. At the time of the collision he was in the act of driving to the southeast from the car track. In fact, the horse and fore part of the wagon were then off the track, and the car collided with the rear wheel only.

There are two specifications of negligence relied upon in the petition for recovery. The first is the alleged violation of what is known as the "vigilant watch ordinance," and the second is an alleged violation of the speed ordinance of the city of St. Louis, which ordinance forbids the operation of street cars at the point in question to exceed 15 miles per hour. The evidence being insufficient to support the allegation under the vigilant watch ordinance, the court referred the case to the jury on the specification of negligence arising under the speed ordinance only. The evidence on the part of plaintiff tended to prove that he was driving south on the west side of Broadway when his progress was interrupted because of the fact that certain portions of the surface of the street had been removed in making repairs. Thereupon he turned upon defendant's south-bound track, and continued his journey, southward. The defendant maintains and operates two street car tracks on Broadway, near or about the center of the street. The track farthest west is occupied by south-bound cars, while the track farthest east is occupied by the north-bound cars. Plaintiff testified that he looked to the rear, and listened for a car at the time of driving upon the track. This was about 250 feet north of the point where he was afterwards overtaken and injured. Not seeing or hearing a car at the time mentioned, he continued driving southward for about 250 feet. Upon crossing Filmore street he looked to the rear, and listened a second time, and neither saw nor heard a car approaching. The time of the year was October, and it was after 6 o'clock in the evening. It was dusk, or between daylight and darkness. Plaintiff said he could see from 75 to 100 feet ahead of him. As he had a view for at least three blocks to the north at the time he looked and listened at Filmore street, it is remarkable indeed that he did not observe the approaching car which inflicted the injury. However, the credibility of his evidence as to looking and listening for the car upon crossing Filmore street was a question for the jury. He said about this time there was a car coming on the east or north-bound track from the south as well, and that, in order to avoid possible danger from the car approaching thereon, he continued on the south-bound track for from 100 to 150 feet south of Filmore street, when, upon turning his horse and wagon to the southeast, in order to leave the south-bound track, the defendant's street car from the north collided with the rear wheel of his wagon, and precipitated him from his seat. This collision resulted in the injuries of which complaint is made. The city ordinance in evidence forbids the operation of street cars at the point in question to exceed the rate of 15 miles per hour. The evidence for plaintiff tended to prove that the car was running, just prior to the collision, at the rate of from 20 to 25 miles per hour in violation of the speed ordinance referred to. There was no testimony introduced as to the distance in which a car, running at the rate of 15 miles per hour, might have been checked or stopped in order to avert a collision. It does appear from the testimony of defendant's motorman, however, that he first saw plaintiff's wagon while in the act of leaving the track, about 50 feet in front of the car. All of the testimony goes to the effect that, upon first seeing plaintiff's wagon, the motorman immediately employed the means at hand to stop the car, and succeeded in stopping the same within 8 feet after colliding with the rear wheel of the wagon.

It is argued the court should have instructed a verdict for the defendant, for the reason there was no evidence tending to show that the excessive speed of the car was the proximate cause of the collision and resulted in the injury to plaintiff. It is very true that the mere fact a street car is run at a greater rate of speed than is allowed by the ordinance will not authorize a recovery, unless there is some evidence connecting a violation of the ordinance with the injury complained of. That is to say, the mere fact of excessive speed, without more, is not sufficient to support an action. A right of action, therefore, accrues to a person only when it appears that such excessive speed operates proximately to his injury. Therefore, in order to support the action, it should appear that the injury would not have occurred if the car were running at a speed within the ordinance limit. There is no presumption of law that, because the car was running in violation of the ordinance, the plaintiff's injury resulted proximately therefrom. On the contrary, such is a matter of fact, which must be established to a reasonable certainty by the evidence. Bluedorn v. Mo. Pac. Ry. Co., 121 Mo. 258, 25 S. W. 943; Kelly v. Han. & St. J. Ry. Co., 75 Mo. 138; Jackson v. Ry. Co., 157 Mo. 621, 58 S. W. 32, 80 Am. St. Rep. 650; Molyneux v. S. W. Mo. Elec. Ry. Co., 81 Mo. App. 25. However, such fact may be proved by other collateral facts and circumstances, as well as by direct and positive testimony. It is certainly not essential for a witness to testify positively that a car, running within the ordinance speed, could have been stopped so as to have averted the injury, when such may be reasonably inferred from the testimony given. Although there was no direct proof in the cause to the effect that a car, running at 15 miles an hour, could have been stopped in time to have averted a collision, a reasonable inference to that effect arises from the facts in proof. From the testimony given on behalf of plaintiff it appears the car was running from 20 to 25 miles per hour; that the motorman first discovered this wagon on the track about 50 feet in front of the car; that upon applying the brakes, he succeeded in stopping the car within 8 feet after having collided with the wagon. The collision, too, was with the rear wheel of the wagon, when the horse and other portions of the wagon had gotten off the...