Siegel v. Wells

• Decision Date: 15 June 1926
• Docket Number: No. 19447.,19447.
• Citation: 287 S.W. 775
• Parties: SIEGEL v. WELLS.
• Court: Missouri Court of Appeals

287 S.W. 775

SIEGEL v. WELLS.

No. 19447.

St. Louis Court of Appeals. Missouri.

June 15, 1926.

Rehearing Denied October 5, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published."

Action by Margaret Siegel, a minor, by Isabel Johnson, her next friend, against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Reversed.

Charles W. Bates, T. E. Francis, Byron G. Carpenter, and Austin E. Park, all of St. Louis, for appellant.

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

BECKER, J.

Plaintiff, in an action for damages for personal injuries, recovered a judgment against the defendant in the sum of $4,500, and the defendant appeals.

The record discloses that defendant stood upon its demurrer at the close of the case and plaintiff's case was submitted to the jury solely upon the humanitarian doctrine.

There are but two assignments of error before us on this appeal, namely, that plaintiff failed to make out a case under the humanitarian doctrine; and, second, that the verdict of the jury is grossly excessive and the result of bias and partiality.

The testimony adduced on behalf of plaintiff tended to show that she was struck by the rear end of a west-bound car on the defendant's Hodiamont line as it traversed the curve turning at Twelfth and Locust streets northwardly into Twelfth street, because the outward swing of the rear end of the car in making the turn projected a distance of 5½ feet over the tracks.

The defendant has two sets of tracks, one for east-bound cars and one for west-bound cars at the point in question. Plaintiff, upon signal from the traffic officer, left the sidewalk at the northwest corner of Twelfth street and Locust avenue and started to walk eastwardly across Twelfth street and proceeded to a point 3 or 4 feet west of the west rail of the west-bound tracks of the defendant where she stopped and waited to permit the west-bound Hodiamont car to pass her. Plaintiff saw the car approaching her when it was distant 35 feet, and she remained standing at the same point near the west track continuously until the time she was struck by the rear end of said car. According to her testimony, the motorman saw her, for he smiled at her. The front end of the car projected 3 feet 10 inches over the tracks on the turn and passed plaintiff in safety, leaving a space of a foot or so between her and the front fender of the street car, and plaintiff testified:

"I didn't think the back end was going to pass any closer to me and a continued to stand there."

But as the car proceeded on its way around the turn the plaintiff was struck by the rear end of the car which had an over-hang of 5 feet 10 inches. The car, at the speed it was going, could have been stopped in 6 feet. The distance from the point where the motorman was standing in the front of the car to the front of the rear vestibule was 34 feet.

The defendant urges that the plaintiff has failed to make out a case on the humanitarian doctrine, in that the rule is never applied excepting where there has been proven a position of peril discovered or discoverable by the person chargeable in time thereafter to have averted injury by the exercise of ordinary care, and that under the record in this case the motorman, seeing plaintiff standing near the track and aware of the car's approach, had the right to assume that plaintiff would step back so as not to take any chance of being struck by the rear end of the car while it laterally extended out while going around the curve.

We have found no cases in Missouri in which the humanitarian doctrine has been relied upon by plaintiff to recover damages for injuries sustained by being struck by the overhanging rear end of a street car in rounding a curve. We have, however, found a number of cases in other jurisdictions which, whilst they do not involve the humanitarian doctrine, do pass upon the question of the motorman's and pedestrians' reciprocal duties to each other under a state of facts such as we have here.

"The rule approved by the weight of authority is that, in view of the well-known fact that, in rounding a curve the rear end of a street car will swing beyond the track, and overlap the street to a greater extent than the front, the motorman may rightfully assume that an adult person standing near the track, who is apparently able to see, hear, and move, and having notice of the approach of the street car, and of the existence of the curve, will draw back far enough to avoid being struck by the rear of the car as it swings around the curve in the usual and expected manner, and therefore no legal duty is imposed upon the motorman to warn such a person against the possible danger of a collision with the rear, because of the swing, if he remains in the same position." Jelly v. North Jersey St. R. Co., 76 N. J. Law, 191, 68 A. 1091; Miller v. Public Service Corp., 89 N. J. Law, 631, 92 A. 343, L. R. A. 1915C, 604.

The Supreme Court of Massachusetts in the case of Widmer v. St. Ry. Co., 158 Mass. 49, 32 N. E. 899, in an action similar to the one before us, held that there was no evidence of negligence on the part of defendant, and in the course of the opinion the court there ruled that—

"At the trial of this case there was no evidence of negligence on the part of the defendant. It was an undisputed fact that the plaintiff was standing near the side of the track, waiting for the car to go by, and she testified that she saw it before it reached her; that she was looking north at some teams, while the car was coming from the south; that she saw the front end of the car go by her, and thought she was far enough from it to be safe; and that she was struck on the right temple by the handle on the rear dasher of the car as it went around the corner. There was no pretense that there was any defect in the car or in its equipments, or in the track, and the plaintiff testified to nothing unusual or improper in the management of the car.

"There was no reason why the driver should not drive past her and around the corner, for he had no reason to suppose that she would come so near the rear of the car as to be struck when it went by."

In the case of Garvey v. Rhode Island Co., 26 R. I. 80, 58 A. 456, plaintiff signaled the motorman of the street car of her desire to take the car while it was rounding a curve, and in consequence of her signal the car was slowed down and nearly brought to a standstill on said curve, whereupon plaintiff walked toward the car for the purpose of boarding it, when it should come to a standstill. The motorman, however, suddenly increased the speed of the car around said curve, thereby causing the rear end of the car to swing or kick out over that part of the street where plaintiff was standing and strike her, causing her injury. On appeal defendant's demurrer was sustained on the ground, that it appeared from plaintiff's petition that plaintiff voluntarily assumed a position of danger relative to said car, and that the petition did not set forth any legal duty owing by the defendant to plaintiff. In the course of the opinion it is said that—

"That plaintiff knew that the position which she took while the car was rounding the curve was a dangerous one must be presumed, as every person who is of sufficient intelligence to be capable of being left alone in the streets must be presumed to take notice of the obvious fact that the body of a street car, in rounding a curve, must necessarily swing out some little distance from the track on the outside of the curve. And for one to place himself within reach of the swing or overhang of a car while it is in motion is as much a bar to his recovery in an action against the company as though he had negligently placed himself in front of a moving car and been injured thereby. Indeed, the former act would seem to be a stronger bar to his recovery than the latter; for, when one negligently places himself in front of a moving car, the motorman, who is in a position to see him, is bound to avoid injuring him if possible, notwithstanding his own negligence. But, where one places himself in such a position that the motorman is unable to see him, as must have been true in the case at bar, and is hit by the swing or kick of the rear part of the car when rounding a curve we fail to see how any liability can be fastened upon the company."

In Beeck v. Coney Island & B. R. Co. (Sup.) 135 N. Y. S. 600, plaintiff was standing near the loop of the New York end of the Brooklyn Bridge about 3 feet from the car tracks when she was struck by the rear end of one of the cars as it came around the curve. Plaintiff saw the car approaching her and it kept in motion...