Sherman v. United Rys. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Allen
• Citation: Sherman v. United Rys. Co., 214 S.W. 223, 202 Mo. App. 39 (Mo. App. 1919)
• Decision Date: 19 June 1919
• Docket Number: No. 15492.,15492.
• Parties: SHERMAN v. UNITED RYS. CO. OF ST. LOUIS.

214 S.W. 223

202 Mo. App. 39

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

No. 15492.

St. Louis Court of Appeals. Missouri.

June 19, 1919.

Rehearing Denied July 1, 1919.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by Israel Sherman against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis, R. E. Blodgett, and Chauncey H. Clarke, all of St. Louis, for appellant.

Holland, Rutledge & Lashly and Louis J. Fortner, all of St. Louis, for respondent.

ALLEN, J.

This is an action brought under section 5425, Revised Statutes 1909, to, recover damages for the death of plaintiff's wife, alleged to have been caused by the negligence of the defendant street railway company in the operation of one of its cars in the city of St. Louis.

The petition, after certain formal allegations, alleges that on April 5, 1915, the defendant operated one of defendant's street cars southwardly over its track on North Fourteenth street, in the city of St. Louis, and through the negligence and carelessness of its said agents and servants, operating the same, caused the car to strike and collide with plaintiff's wife, Rose Sherman, knocked her to the street, and caused the car to" run upon her, inflicting injuries from which she died within a few minutes thereafter.

And it is alleged that the striking of plaintiff's wife by said car was directly due to the negligence and carelessness of defendant, through its agents and servants, in operating the car, in that defendant's said agents and servants negligently "failed to keep and maintain a vigilant watch for the said Rose Sherman, a pedestrian upon the street moving toward the car track aforesaid, so as to observe the said Rose Sherman in time to have stopped the said car and avoid striking and colliding with said Rose Sherman"; in failing to sound a gong as a warning to Rose Sherman of the approach of the car to a point where passengers customarily boarded and alighted from street cars upon said street, at a regular stopping place for receiving and discharging passengers; in negligently operating the car at a high and dangerous rate of speed, along a crowded public street; and in operating the car at a rate of speed in excess of 10 miles per hour, in violation of an ordinance of the city of St. Louis in force at the time. And a violation of the so-called vigilant watch ordinance of the city of St. Louis is charged, in that defendant's motorman in charge of the car failed to use ordinary care to stop the same in time to avoid a collision with Rose Sherman, after he saw, or by the exercise of ordinary care upon his part could have seen, said Rose Sherman in a position of peril.

It is then alleged that plaintiff and Rose Sherman were the natural parents of certain children, naming them and setting forth their ages; and that as a result of defendant's negligence plaintiff has lost the services, consortium, and companionship of his said wife. Judgment is prayed in the sum of $10,000.

The answer contains first a general denial, and then alleges that the injuries, if any, which Rose Sherman received, and which are alleged to have caused her death, were caused by her own negligence in running in front of and in dangerous and close proximity to a moving street car; that such injuries, if any, were caused by the negligence of Rose Sherman in running directly in front of and in such close proximity to a moving street car that the motorman, with the appliances at his command, and with due regard to the safety of the passengers on his car, could not have stopped the car in time to avoid striking her; that such injuries, if any, were caused by negligence of Rose Sherman in not looking or listening before she went upon the street car track, when by looking she could have seen, or by listening she could have heard, the approaching car.

The reply is conventional.

The trial, before the court and a jury, resulted in a verdict for plaintiff in the sum of $7,500. The trial court forced plaintiff to remit $2,500, and judgment was entered in plaintiff's favor for the sum of $5,000. From this judgment the defendant prosecutes the appeal before us.

The evidence shows that on April 5, 1915, plaintiff lived with his family at No. 1418 North Fourteenth street, a street extending north and south, in the city of St. Louis; plaintiff's home being on the east side of the street. This portion of Fourteenth street is in a crowded portion of the city, sometimes termed the "Ghetto," populated, for the most part at least, with people of the Jewish race. At the time of the casualty, many persons, including children, were upon the sidewalks; the day being a Jewish holiday. The evidence shows that the street at this place is 36 feet in width from curb to curb, the sidewalks upon each side thereof being 12 feet wide. Defendant's street car tracks, at the time in question, occupied the center of the street; and consequently from either curb, or the outer edge of either sidewalk, to the center of defendant's track, was a distance of but 18 feet.

Shortly prior to her death, Rose Sherman was standing upon the sidewalk on the west side of the street, in front of the house numbered 1415, talking with a woman who was at a window opening upon the sidewalk. She was then on the opposite side of the street from her home, and a short distance south thereof. It appears that the members of her family, including her youngest child, about two years of age, were at or about No. 1418, where was also a Mrs. Jalinsky, who lived "in the same yard" and conducted a store at this place. The testimony in plaintiff's behalf is to the effect that this little child came out upon the sidewalk in front of No. 1418 as one of defendant's cars was approaching from the north, saw her mother across the street, and started to go to her; and that Mrs. Jalinsky, upon perceiving this, gave the alarm by crying out, "Stop the car, the baby is coming," and ran into the street after the child. According to Mrs. Jalinsky's testimony, she caught the child when the latter was within perhaps 3 or 4 feet of the passing car. There is other testimony tending to show that the child was perhaps but 2 feet from the car when it passed.

The evidence is that when Mrs. Jalinsky gave the alarm, as stated above, other persons in the vicinity likewise cried out; that Mrs. Sherman, hearing these cries, turned and saw her child in peril from the approaching car, rushed across the sidewalk and into the street, with her arms raised and calling upon the motorman to stop the car. There is testimony that in approaching the car track she ran in a southeasterly direction, but other testimony is to the effect that she left the sidewalk and started toward the child. In thus attempting to cross the street, to rescue her child, Mrs. Sherman came upon the track and was struck and run upon by the car, receiving fatal injuries.

One witness, Max Sherman, a brother of plaintiff, said: "The mother ran east, and the child was coming west." According to his testimony, when Mrs. Sherman threw up her hands and called, the car was about 80 or 90 feet north of house No. 1415, and the motorman "just kept coming," and "didn't no attention." As to what occurred thereafter, the witness said:

"I guess the car was 10 to 15 feet away. She like to come further out and have a chance to cross, at the same time she was going over the track, and it caught her by the skirt and knocked her back over in front of the gate, * * * and rolled her around a couple times right in front of the gate."

This witness testified that "before the accident the car was coming about 20 miles an hour, about twice as fast as a team can; faster"; that the car was about 10 feet away when Mrs. Sherman stepped on the track.

Another witness, one Adamson, testified that he was passing north on the west side of North Fourteenth street opposite No. 1415; that he heard a woman on the east side of the street scream out, "That child is going to get killed by the car"; that Mrs. Sherman, who was standing at the window of No. 1415, turned, saw that it was her child, and ran into the street, throwing up her hands and calling to the motorman to stop; that the car was then 80 or 90 feet north of that point; that "when Mrs. Sherman left the sidewalk she started southeast, across * * * and she just kept going southeast until she got to the track, and went on the track, and the car caught her and knocked her down on the cowcatcher"; that she "fell off the front" and was rolled on the track probably 30 or 35 feet "before the car killed her." According to the testimony of this witness, the car "was going between 17 and 18 miles an hour" just prior to the time when it struck Mrs. Sherman. This witness further testified that he saw the child when it was about 3 feet from the track, and then the car "darkened the child" from him, i. e., passed between him and the child.

One Villinsky testified that he was standing at No. 1409, the fourth house south of No. 1415, heard the people shouting, and saw Mrs. Sherman run into the street, motioning to the motorman; that she "turned around and started out and run to the baby"; that when she ran on the track the car was 10 to 12 feet away; and that the car did not stop after it struck her until it was about opposite No. 1409.

It was shown that the track at this place extended slightly upward, toward the south; the grade being about 1 per cent. And expert testimony was adduced by plaintiff tending to show that a car of this character, under the circumstances, could have been stopped in 60 feet if going 20 miles an ?hour, in 40 feet if going 15 miles an hour, in 20 feet, if going 10 miles an hour, and that at a speed of 4 or 5 miles an hour it could have been stopped in a very short space—within 4 or 5 feet.

Defendant called the motorman of the car a witness. He testified that he saw plaintiff's little child playing on the...