Schmitter v. United Rys. Co.

• Decision Date: 07 November 1922
• Docket Number: No. 16777.,16777.
• Citation: 245 S.W. 629
• Parties: SCHMITTER v. UNITED RYS. CO.
• Court: Missouri Court of Appeals

245 S.W. 629

SCHMITTER v. UNITED RYS. CO.

No. 16777.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

On Motion for Rehearing, November 23, 1922.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Josephine Schmitter against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant peals. Affirmed.

Charles W. Bates, T. E. Francis, and Ben T. Hardin, of St. Louis, for appellant.

Brownrigg, Mason & Altman, of St. Louis, for respondent.

BRUERE, C.

Plaintiff, who is respondent here, brought this action for personal injuries sustained by her as a result of being struck by one of defendant's street cars in the city of St. Louis. She obtained a judgment for $2,000, from which defendant has appealed.

Several acts of negligence are charged in the petition, but all were abandoned save the humanitarian doctrine, upon which the case was submitted to the jury. The answer was a general denial, coupled with a plea that whatever injuries plaintiff may have sustained, if any, were caused by her own carelessness and negligence in going toward and onto a street car track without looking or listening for approaching cars thereon, and in going upon said street car track immediately in front of an approaching car. The errors assigned in this court relate to the refusal of the court to direct a verdict for the defendant, to the giving and refusing of instructions, and that the verdict is excessive.

The facts disclosed by the evidence are: The collision occurred on the 20th day of April, at about 5:45 o'clock in the afternoon, near the northeast corner of Washington and Jefferson avenues. Washington avenue runs east and west, and Jefferson avenue runs north and south. A double-track street railway was maintained on Washington avenue and also on Jefferson avenue. On Washington avenue the west-bound cars ran on the north track and the east-bound on the south track. On Jefferson avenue the north-bound cars ran on the east track and the southbound on the west track. The width of the sidewalk on the east side of Jefferson avenue is 12 feet, and the width of the sidewalk on the north side of said street is 15 feet. There is a break in the north line of Washington avenue, where it crosses Jefferson, which leaves the northwest corner of the street intersection 12 feet further south than the northeast corner. The distance from the north rail of the west-bound track on Washington avenue to the curb line on the north side of Washington avenue, east of Jefferson, is 64 feet. The distance between the east and west bound tracks on Washington avenue is 5 feet 2 "inches, and the width between the rails of each "::rack is 4 feet 8 inches. The distance from the curb line on the east side of Jefferson avenue to the east rail of the north-bound track on Jefferson avenue is 17 feet 4 inches. The west-bound Washington avenue cars stop on the east side of Jefferson avenue, and the north-bound Jefferson avenue cars stop on the south side of Washington avenue. The southbound Jefferson avenue cars stop on the north side of Washington avenue. The cars operated on Jefferson avenue, at the time of the accident, were about 46 feet long.

Touching now the manner of plaintiff's injury, the facts as testified to by plaintiff are, in substance, these: Just prior to the accident plaintiff had alighted from a west-bound Washington avenue car, intending to board a south-bound Jefferson avenue car at the northwest corner of Jefferson and Washington avenues. After leaving the car she walked north across Washington avenue and upon the sidewalk on the east side of Jefferson avenue, and then saw a north-bound Jefferson avenue car on the south side of Washington avenue taking on passengers. She proceeded west to the east curb of Jefferson avenue, then stepped off the curb into the street, and at that time saw said northbound car approaching, with the back part of the car between the Washington avenue tracks. Thinking she could cross the track before said car reached the point of crossing, she did not again look at said car, but proceeded to walk across the street, in a northwesterly direction, and was struck in the back by the front end of said car and Injured.

There was evidence adduced showing that the plaintiff, after she left the sidewalk, walked in a northwesterly direction across Jefferson avenue, with her back to the approaching car, and apparently oblivious of danger.

The testimony as to the speed of the car ranged from four to six miles per hour; and there was testimony adduced tending to show that, under the conditions prevailing at the time of the accident, a car of the character in question, running at the rate of four miles an hour, could be stopped in 5 feet; at six miles an hour, in 8 feet.

Since the present case is bottomed solely on the humanitarian doctrine, the question of plaintiff's contributory negligence is not in the case. The question before us is whether there is any evidence in the record tending to show that the motorman in charge of the car could, by exercising ordinary care, have seen the plaintiff in a position of peril and at a distance sufficiently great to have enabled him, by the exercise of ordinary care, to have stopped the car before striking her.

The witnesses, either for the plaintiff or the defendant, do not agree as to just where the plaintiff was when she was hit or as to how far the car in question was from her at the moment she came into the danger zone. Regarding this matter the motorman in charge of the car, and a witness for the defendant, testified as follows:

"Q. Will you just tell the jury where she was when you first saw her and how this accident occurred? A. Well, where she was when I first saw her, she was about 8 feet from the track. I was going north on Jefferson. The front end of the car was just about on the crossing, on the Page avenue crossing, and she was running northwest, and about 8 feet from the track and about 6 or 8 feet ahead of the car. It was a very windy day and she just kept on, a, fast—you might say little trot she was going, without paying any attention to the warning of anything, and I was getting very close to her, and was doing all my best to stop the car in that time

"Q. Did you sound your gong as you were passing Page avenue tracks? A. Yes, sir.

"Q. You say when you saw her she was about 6 or 8 feet ahead of you? A. Yes, sir.

"Q. About the some distance from the track? A. Yes, sir.

"Q. And she was going, as I understand you, in a trot? A. Yes, sir.

"Q. Now, Mr. Daume, when you saw that this girl was going to enter the track, what did you do? A. Why, I applied my air—shut off my power, applied my air. I seen I wasn't going to stop in time. I reversed my car.

"Q. Is that the most effective means of making an emergency stop? A. Yes, sir.

"Q. What portion of the car came in contact with her? A. The right-hand corner of the vestibule.

"Q. And about how far did you run after the collision? A. I don't expect 4 feet; I don't think I ran that far."

Cross-examination:

"Q. Where did tie front end of the car finally come to a stop with regard to that north curb on Washington? A. About 6 feet south of the north curb of the Union Dairy there.

"Q. And how fast was your car running? A. About six miles an hour, six or seven.

"Q. Six to sever, miles an hour? A, Yes.

"Q. Did you notice her holding to her hat? A. Yes, sir.

"Q. Did she continue to do that from the time you saw her up to the time she was struck? A. No, sir. After I got her attention, the car was approaching, she looked around at me.

"Q. How far was she from the track when she looked around? A. She wasn't over 0 feet, I guess—very close.

"Q. And how far north of the car was she then? A. She was that far north of the car.

"Q. Six feet from the track and 8 feet north of the car, too? A. No, I meant 6 feet north of the car.

"Q. How far from the track was she? A. She was in the center of the track.

"Q. That is the first time you got her attention? A. That is the first time I got her attention; yes, sir.

"Q. From the time you first saw her until after she got on the track she continued going northwest, with her hat pulled down, and without looking around? A. Yes, sir.

"Q. And you say she was in the center of the track when the car was 6 feet from her? A. Almost, yes.

"Q. Almost in the center of the track? A. Yes, sir.

"Q. Going west? A. Going northwest.

"Q. How fast was the car running? A. About six miles an hour.

"Q. How fast was she traveling? A. I don't know. She was going a little trot.

"Q. Was she going as fast as four miles an hour? A. I don't know how fast four miles an hour is.

"Q. Was she going as fast as the car at that time? A. No."

"In the instant case, in order to make out a case under the humanitarian doctrine, it is not necessary to consider whether, under the evidence, the motorman knew, or in the exercise of ordinary care should have known, that the plaintiff was oblivious to her danger, and therefore in a position of Peril before she actually got upon the track in front of the approaching car, or so near thereto as to be struck by it; but the danger zone may be limited to the track itself and the space outside the track occupied by the car in running thereon, and we shall so limit it in dealing with the question before us.

From the testimony of defendant's motorman it appears that plaintiff was in the center of the track when the car was 8 feet from her, and that the car was traveling six miles per hour. Plaintiff entered the danger zone when she placed herself in the path of the oncoming car, which area extended beyond the track. It is obvious, therefore, that when plaintiff first placed herself within said zone, the approaching car was more than 8 feet from her. According to the testimony of Mr. Smith, plaintiff's expert, the car, running at the rate of six miles an hour, could have been stopped, under the...