Shanks v. Springfield Traction Co.

• Citation: 101 Mo. App. 702,74 S.W. 386
• Parties: SHANKS v. SPRINGFIELD TRACTION CO.
• Decision Date: 28 April 1903
• Court: Missouri Court of Appeals

74 S.W. 386

101 Mo. App. 702.

SHANKS v. SPRINGFIELD TRACTION CO.

Court of Appeals at St. Louis, Missouri.

April 28, 1903.

STREET RAILWAYS—INJURY TO PERSON ON TRACK—CONTRIBUTORY NEGLIGENCE —DISCOVERED PERIL.

1. A deaf person is guilty of contributory negligence in walking along a street car track without looking back frequently to see if a car is coming.

2. Plaintiff, who was deaf, was walking along the track of defendant's street railway, when a car approached him from behind; the motorman making no effort to check the car until he was within 10 or 15 feet of plaintiff, although he rang the gong, and at about the time he began to check the car shouted to plaintiff. The track was straight, and the motorman able to see plaintiff several hundred feet ahead. Held that, though plaintiff was guilty of contributory negligence in walking upon the track, there was a question for the jury—as to whether the motorman was not guilty of negligence proximately causing the injury, in failing to sooner check the car after he became aware of plaintiff's dangerous situation.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by John Shanks against the Springfield Traction Company. From a judgment for defendant, plaintiff appeals. Reversed.

Wright Bros., for appellant. B. U. Massey and T. J. Delaney, for respondent.

Statement of Facts and Opinion.

GOODE, J.

Plaintiff was struck by a car of the defendant company while walking along its track, and injured, and this action was brought to obtain the consequent damages. The negligence charged is that after the employés who were operating the car saw, or by the exercise of reasonable care and diligence could have seen, the dangerous position of plaintiff, his imminent peril, and that he was unaware of the approach of the car, they failed to use the brake and other appliances provided to stop it, and instead, recklessly, negligently, and wantonly ran against the plaintiff. Besides a general denial, the answer pleads that the accident was due solely to the negligence of plaintiff in walking on the track of the defendant in front of a moving car; that the servant of the defendant rang the bell to warn plaintiff, and called out to him; that plaintiff did not hear the warning, and, as he did not get off the track, the motorman made every effort to stop the car—shut off the power and turned on the brake—but, as the rails were wet, could not stop it in time to avoid striking plaintiff. Shanks is deaf. The day he was hurt the walks were sloppy, and the walking was better on the car track in the middle of the street. So he and other pedestrians left the sidewalks and went on the track. He had walked there about 160 yards when the car struck him. The accident happened in the city of Springfield, near noon, on February 22, 1902. Dr. J. R. Boyd, who witnessed it, testified that the bell was ringing, and the motorman shouted to plaintiff, who could not hear the warning; the motorman called out when he was about 10 or 15 feet away from plaintiff, and was then putting on the brake; snow was on the ground, but the track was clear, dry, and in nice condition; the street was straight, and one could see down it quite a distance. Another witness testified that the motorman began to put on the brake at the time he called to Shanks, 10 or 15 feet away; he began ringing the bell when 100 feet away. The testimony of W. W. Hayden tended to show that on South street, where the accident occurred, a person could see several hundred feet ahead. At the conclusion of the plaintiff's testimony, the court gave an instruction to the jury to return a verdict for the defendant.

Plaintiff was undoubtedly guilty of negligence in walking on the car track, when he was deaf, without looking back frequently to see if a car was coming; but, in view of the recent decisions on the last-chance doctrine, it was for the jury to say whether the motorman discerned that plaintiff was likely to remain on the track, and in danger of being run over, soon enough to stop the car before it overtook the plaintiff. Ordinarily a motorman or locomotive engineer is justified in assuming that a person on a railway track will hear a warning bell or whistle, and step aside in time to escape harm from an approaching car or train. But measures must be taken to save an individual in that situation as soon as his behavior or any other circumstance signifies that he is oblivious of the danger, and cannot be aroused in time to save himself, or that he is conscious of the danger, but unable to save himself. Railroad v. Tartt, 39 C. C. A. 568, 99 Fed. 369, 49 L. R. A. 98. As to just when it becomes the duty of a motorman or engineer to begin to put his car or engine under control, is the essential question in every such case, and is commonly one for the jury to answer, as is the further question of whether that duty was performed with reasonable diligence. Shanks was visible to the motorman of the car which struck him, a long distance ahead, and his inattention to the warning bell must have...