Sims v. St. Louis & S. Ry. Co.

• Decision Date: 13 February 1906
• Citation: 92 S.W. 909,116 Mo. App. 572
• Parties: SIMS v. ST. LOUIS & S. RY. CO.
• Court: Missouri Court of Appeals

92 S.W. 909

116 Mo. App. 572

SIMS v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

Rehearing Denied February 27, 1906.

1. RAILROADS—CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE.

Plaintiff, in an action for injuries sustained in a crossing accident, was guilty of contributory negligence, where the physical facts showed that if he had looked, he could have seen the car in time to have avoided the collision.

2. SAME—DIRECTION OF VERDICT.

Where, in an action for injuries sustained in a crossing accident, the evidence showed plaintiff guilty of contributory negligence, and there was no evidence of willfulness or wantonness on the part of the motorman, a verdict should have been directed for defendant.

3. SAME—CONCURRING NEGLIGENCE.

Where the negligence of plaintiff injured in a crossing accident concurred with that of the motorman, plaintiff could not recover.

Appeal from Circuit Court, St. Charles County; Elliott M. Hughes, Judge.

Action by Alvin Sims against the St. Louis & Suburban Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jefferson Chandler, for appellant. R. H. Stevens and C. W. Wilson, for respondent.

BLAND, P. J.

The action is to recover damages to property and for personal injuries, alleged to have been caused by defendant's negligence in running its car against the plaintiff's wagon. The specific charges of negligence were, first, running its car at a high and unlawful rate of speed, to wit, 30 miles an hour; second, failure to ring a bell or give any warning of the car's approach; third, failure to stop the car after the defendant's motorman saw or, by the exercise of ordinary care, could have seen plaintiff's wagon crossing its track in ample time to have stopped the car and prevented the collision. The answer was a general denial and a plea of contributory negligence on the part of the plaintiff in carelessly failing to look and listen for a car. The reply denied all new matter in the answer. The trial resulted in a verdict for plaintiff for $1,200. A motion for a new trial was moved and overruled and judgment was entered on the verdict. Defendant appealed.

The evidence shows that about 1 o'clock in the morning of August 15, 1900, plaintiff was driving eastwardly along Easton avenue, in the city of St. Louis. Plaintiff testified that as he approached the point where the tracks of the defendant railway company crosses said Easton avenue, he was driving about three or four feet from the south curb of the street; that the street was rough and his wagon was loaded with farm produce; that he looked both ways, north and south, for a car, while his horses were traveling toward the track; that there were double tracks running north and south, and he was looking south when his wagon entered the west or southbound track, and as he turned to look north, he saw the car that struck him just about the building line on the north side of Easton avenue, coming at a very high rate of speed; that he was scared and did not have time to jump before his wagon was struck with such terrific force as to throw him about 40 feet from the wagon and against a post; that a shoe of one of his horses was jerked off and his wagon "smashed up"; that the wagon was struck almost immediately on the brake and hub of the hind wheel, the horses being on the east track; that by the force of the fall against the post, two of his ribs and his collar bone were broken and that he had not fully recovered from his injuries; that one of his horses was made seriously lame, and his wagon ruined. Plaintiff also testified that he did not hear the car or gong until he got on the south track, and that his sight and hearing were good. Plaintiff's evidence and the evidence of his witnesses, is that the car was running at a speed of from 25 to 30 miles an hour and that the gong was not sounded until within a few feet of the wagon.

Plaintiff employed and assisted Edgar Rapp, a surveyor, to survey and make a plat of the crossing and surroundings. The plat sufficiently exhibits the physical facts and we insert it here (in condensed form) for the reason they are important in view of the fact that on them and the plaintiff's own evidence, the defendant rests its contention that the court should have given its instruction in the nature of a demurrer to plaintiff's evidence, asked at the close of his evidence and again at the close of all the evidence.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On the plat are red stars (A and B) indicating two positions of plaintiff's wagon as he drove on the crossing and the distance from these points (11 and 14 feet, respectively) to the outside rail of defendant's tracks. The red lines¹ running north from these two points show the line of vision and the distance on defendant's tracks where a car could have been seen. From point B a car could have been seen 180 feet north, and from point A 229 feet. Rapp testified that point A represented, by actual test, the distance a man would be, seated on a wagon, when his horses' heads would be over...