Smith v. East St. Louis Ry. Co.

• Decision Date: 03 June 1941
• Docket Number: No. 25486.,25486.
• Citation: 152 S.W.2d 204
• Parties: SMITH v. EAST ST. LOUIS RY. CO.
• Court: Missouri Court of Appeals

152 S.W.2d 204

SMITH v. EAST ST. LOUIS RY. CO.

No. 25486.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Appeal from St. Louis Circuit Court; William S. Connor, Judge.

"Not to be reported in State Reports."

Action by Fred Smith against the East St. Louis Railway Company for personal injuries. From a judgment for plaintiff, defendant appeals.

Reversed.

See, also, 234 Mo.App. 1220, 123 S.W.2d 198.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford, all of St. Louis, for appellant.

Louis E. Miller and Robert R. Adams, both of St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal by defendant from a judgment rendered against it by the Circuit Court of the City of St. Louis, in an action for damages for personal injuries which resulted from a collision between a taxicab driven by plaintiff and a street car owned and operated by defendant.

The amended petition, upon which the case was tried, alleged that on or about June 7, 1935, plaintiff, while driving his automobile in a careful and prudent manner north on Sixth Street at or near its intersection with State Street, both open and public highways in the city of East St. Louis, Illinois, and while attempting to cross State Street, was carelessly and negligently struck by defendant's street car and caused to sustain severe and permanent injuries, which injuries are described in said petition.

The amended petition then sets forth the following specifications of negligence: (1) Negligent failure to keep a careful watch and lookout ahead for automobiles; (2) negligent operation of said street car at a high and dangerous rate of speed under the circumstances; (3) negligent failure to keep said street car under such control that it could have been reasonably stopped upon the first appearance of danger; (4) violation by defendant of the humanitarian rule. The prayer of the petition asked for $15,000 damages.

The answer of the defendant, in addition to a general denial, pleaded that plaintiff's injuries were caused by his own negligence contributing thereto. The specifications of contributory negligence alleged were substantially: (1) That while defendant's street car was proceeding westwardly on State Street, plaintiff drove his taxicab directly into the pathway of and against said street car at a high, dangerous, and excessive rate of speed under the circumstances; (2) that plaintiff negligently failed to heed the warning of a boulevard stop sign at State Street before entering said State Street, whereas if he had not so failed he would have avoided running into the traffic on State Street and onto said street car tracks and against defendant's street car; (3) that plaintiff saw, or by the exercise of ordinary care would have seen, and heard, defendant's street car in dangerous proximity to him, in time, by the exercise of ordinary care, to have avoided driving on said tracks and into the pathway of and against said street car; (4) that plaintiff negligently failed to exercise ordinary care to keep a lookout ahead, to observe the condition of traffic, and particularly to observe westbound street cars on said State Street; (5) that plaintiff saw, or by the exercise of ordinary care would have seen, said street car at said intersection and in dangerous proximity to his taxicab, should the same be propelled across said street, in time, by the exercise of ordinary care, to have avoided driving across said State Street, and to have swerved or slowed down in such manner as to have avoided driving upon said tracks and against said street car, and causing said collision, but negligently failed to do so; (6) that plaintiff violated the section of the Illinois Motor Vehicle law which provides that motor vehicles of the kind driven by plaintiff should not be driven in excess of ten miles per hour in closely built-up business portions of any incorporated town or village; (7) that plaintiff violated Section 39, Subsection (2), of the Illinois Motor Vehicle law, Smith-Hurd Stats. c. 95½, which provides that motor vehicles traveling on public highways shall give the right of way to vehicles approaching along intersecting highways from the right.

The answer further pleaded that the law of Illinois does not recognize the doctrine known and described in the common law as the humanitarian or last chance doctrine, and cited six decisions of the appellate courts of the State of Illinois in support of said allegation.

The evidence showed that the accident occurred in the business section of downtown East St. Louis, Illinois, at the intersection of Sixth and State Streets; that Sixth Street, which runs north and south, is thirty feet wide; and State Street, which runs east and west, according to plaintiff's evidence is approximately sixty feet wide; that double street car tracks of the defendant are located on State Street, the northern track being used for westbound street cars, and the southern track for eastbound street cars.

Plaintiff, testifying in his own behalf, stated that on June 7, 1935, he was employed by the Economy Cab Company, and just prior to the accident he had picked up a passenger, whom he was taking to Armour's packing house; that he proceeded north on Sixth Street, and as he reached the intersection of Sixth and State Streets, he made a boulevard stop, and looked both toward the east and west on State Street. At that time he observed to the east a street car proceeding west on State Street, about a block or three hundred feet distant. He thought he had time to cross the street in front of the oncoming car. He proceeded to do so, moving either in low or second gear, at the rate of ten or fifteen miles per hour. When he had proceeded about one-third of the way across said street, or about twenty feet, he again looked toward the east, and observed the oncoming street car about one hundred feet from him, traveling thirty or thirty-five miles per hour. At this point plaintiff, according to his testimony, was traveling four or five miles per hour, two or three feet to the right of the center line of Sixth Street. His car was equipped with four-wheel brakes, which were in perfect condition. Going four or five miles per hour, he could have stopped in four feet. He further stated that when he saw this street car the second time, one hundred feet distant, he still figured that he could safely get across the tracks in front of it. He therefore, continued, and when he reached a point where his front wheels were between the two sets of tracks, or two or three feet from the south rail of the westbound track, he again looked and saw the street car bearing down upon him and about six feet away. At another point in his testimony he said the street car was fifteen or twenty feet from him at that time. He further testified that at that time he was going around ten or fifteen miles per hour. Confronted with the foregoing situation, he immediately turned his car to the left, but was unable to avoid the collision. The left front side of the street car struck at about the right front door of the automobile, causing it to be carried a distance of approximately one hundred feet west of Sixth Street.

Samuel Dixon, plaintiff's witness, testified that he saw the collision from the sidewalk on the northeast corner of the intersection. He observed the taxicab come north on Sixth Street, and saw plaintiff stop at the boulevard stop sign on the south side of State Street. At that time, he saw the westbound street car a block away, traveling thirty or thirty-five miles per hour. He testified that the taxicab was traveling ten miles per hour at the time of the collision. The street car came to a stop about ninety or a hundred feet from the point of collision, and the collision occurred on the northwest corner. He also stated he noticed sand on the rail about the place where the collision occurred, and glass scattered along the street from the place of collision to where the car had stopped. He stated that the front end of the street car was bent and the glass in the front end of the street car was broken.

John Johnson, also for plaintiff, testified that he was a passenger in another taxicab, behind the one involved in the accident. He stated that plaintiff's cab stopped on the south side of State Street, and when it started out across State Street, the cab in which he was riding pulled up to the stop sign and stopped. He testified that at that time he looked east on State Street and saw the westbound street car about one hundred and fifty feet away. The plaintiff's taxicab, according to Johnson's testimony, was then moving across State Street at about four or five miles per hour, about two or three feet from the east curbline of Sixth Street, and the street car was traveling about thirty or thirty-five miles per hour, and did not decrease its speed. He further testified that after the collision, which occurred in the center of Sixth Street, the street car and taxicab were stopped about sixty-five to eighty feet west of the intersection. After the accident, he noticed the front end of the street car was caved in, glass was broken in the front end of the street car, and the front end of the automobile was against the front end of the street car.

Henry Overbeck testified that at and prior to the accident he was engaged in conversation with a friend, on the sidewalk in front of the Bunny Bar, which the evidence shows was located on the north side of State Street three doors west of Sixth Street. He stated that he looked up and saw a taxicab make a boulevard stop, and then start out into the street anywhere from six to twelve miles per hour, at which time the street car was coming at the rate of thirty or thirty-five miles per hour without decreasing its speed. Plaintiff, he stated, pulled out in the center of the street, and then swerved to the left. The collision occurred on the left rail of the westbound track, at the west curbline of Sixth Street. The street car...