Spaunhorst v. United Rys. Co.

Citation209 Mo. App. 319,238 S.W. 821
Decision Date07 March 1922
Docket NumberNo. 28985.,28985.
PartiesSPAUNHORST v. UNITED RYS. CO. OF ST. LOUIS
CourtCourt of Appeal of Missouri (US)

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Josephine Spaunhorst against the United Railways Company of St. Louis for damages for personal injuries. Verdict and judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

T. E. Francis, Charles W. Bates, and Albert D. Nortoni, all of St. Louis, for appellant.

Albert E. Hausman, of St. Louis, for respondent.

DAUES, J.

This is an action for damages alleged to have accrued to plaintiff because of personal injuries received on account of defendant's negligent operation of one of its cars. Plaintiff recovered a verdict and judgment in the circuit court for 84,000. Defendant prosecutes this appeal.

The charges of negligence specified in the petition may be classified thus: (1) Negligent failure to sound a warning; (2) negligent running of the car at excessive speed; (3) failure to keep a vigilant watch; and (4) the petition counts on the humanitarian doctrine. The answer is a general denial and charges of contributory negligence. The reply is a general denial.

On May 16, 1918, plaintiff was injured in a collision between an automobile driven by her and one of defendant's freight cars on Manchester road in St. Louis county at a point where the Kirkwood-Ferguson line of the defendant intersects said road several miles from the city of St. Louis. The defendant's car was what is known as a rock or work car. It was about 30 feet in length, and constructed like an ordinary railroad box car and propelled by means of an electric motor in charge of the motorman on the forward end; the power being obtained from the trolley above. The car was 12 feet high, and equipped with ordinary hand brakes only. Plaintiff, at the time of the accident, was driving a five-passenger Ford automobile, sitting on the left-hand side in the front seat at the steering wheel. With her on the front seat was her mother, her father sitting in the rear seat. The accident occurred in the early afternoon. The day was bright and the road dry.

At the point in question, Manchester road runs east and west, and the defendant's car tracks cross the road at right angles, running almost due north and south. The work car was fully loaded with rock, which was being hauled from a quarry owned by defendant located on a switch about a quarter of a mile south of Manchester road. The track from the quarry south of Manchester road northward and across Manchester road is straight, and laid on an embankment which is about 8 feet above level of an open field immediately adjacent and south of Manchester road. Extending southwardly from a point approximately 20 feet south of Manchester road, and 15 feet east of the car tracks, there was a row of 16 trees extending about 250 feet, and the trees at the time were in full foliage. The ground at that point being 6 or 8 feet lower than the rails of the tracks, the foliage of the trees extended over the tracks for a distance of about 20 feet over the level of the rails. There were two signboards in the field east of the tracks and south of Manchester road, the sign being built in what is known as "V-shaped," the point of the "V" being toward Manchester road and the open wings being to the south. The point of the signboard was 6 feet south of the south line of Manchester road, and the west wing of the signboard extended to a point about 26 feet east of the tracks. The other end of the signboard was about 175 feet east of the tracks.

According to plaintiff's testimony, she was entirely familiar with the situation of the crossing; she had been over this point a great many times, driving an automobile, and she was familiar with the obstruction of the view at this point. On this occasion the automobile was open on the sides. Plaintiff was sitting on the side from which the work car approached. She testified that at the time of the accident she was driving about 3 feet north of the center line of the roadway; that the traveled portion of the roadway is 33 feet wide. It appears from other testimony that the road itself is 60 feet wide at this point. Plaintiff says that the foliage of the trees cut off her view up the track to a point beyond 20 feet south of Manchester road; that in approaching the tracks she had slowed down her automobile from 12 to 10 miles an hour; that she neither saw nor heard the car, though she looked and listened therefor; and when at a point 17 feet east of the tracks she for the first time was able to see, and did see the rock car coming north which was then at a point about 20 feet south of the south line of Manchester Road; that she at once put her foot on the brake and pulled up the hand brake; that the automobile continued on, however, until it almost reached the tracks, she having turned the wheels slightly to the north at the track, and that as her machine stopped she attempted to reverse the mechanism to back it, and while engaged in this attempt the main portion of the rock car passed clear of the wheels, but a projection on the right side near the front struck the left front wheel of the automobile, breaking it and damaging the radiator, causing plaintiff to be thrown against the steering wheel, from which she suffered a fractured jaw.

In plaintiff's judgment, the rock car when she first saw it, was moving at a rate of 20 to 22 miles an hour. She seemed positive in her statement that she could stop her automobile when going at a speed of 10 miles an hour in 10 feet. At this place in the road there is a slight upgrade towards the west. The roadway was dry, the mechanism and the brakes of her automobile were in perfect working condition, and she says she applied the brakes immediately upon seeing the rock car when she was 17 feet from the tracks (taking the evidence most favorable to her), which was as soon as her vision became unobstructed.

The testimony of Mrs. Sarah Spaunhorst, plaintiff's mother, did not vary substantially from that given by plaintiff herself.

The defendant's motorman, Mahoney, testified on behalf of plaintiff that he was in charge of the rock ear on this occasion; that he was operating the car at from 10 to 12 miles an hour; that he was on the front platform proceeding northwardly, and that when he arrived at a point about 20 feet south of the south line of Manchester road he saw the plaintiff's automobile about 30 feet east of the track; that the automobile was north of the center line of the road, just about the center line going west. On cross-examination, this witness stated that

At 150 to 200 feet from the crossing he began to ring the bell on the car, and continuously rang same as he crossed Manchester road; that when he first saw plaintiff, that is, when the car was 20 feet from Manchester road, "it looked to me like she stopped the machine. I rode up to the crossing slowly about 10 miles an hour, and when I seen the lady stop, I went to cross, and then turned around to look, and it looked like she used the wrong lever in my judgment. The machine run right into the side of my car."

This witness was unable to fix the distance with exactness, and said that plaintiff's automobile might have been 40 feet from the track when he first saw it, and that when the automobile was "15 or 20 feet-25 feet back from the track, I suppose," plaintiff increased the speed of her automobile; it seemed to witness that plaintiff used the wrong lever of the automobile; that he applied the hand brake on the car as soon as he discovered that the automobile had not stopped, but had increased its speed; that the street car had reached some point in Manchester road before he was able to stop his car. The point of collision on the car was near the front, where there were steps projecting. Witness said that he operated his car at the rate of 10 miles an hour until about the center of Manchester road, when he began to stop same, and that when the car stopped the rear end of same was about 10 feet on Manchester road.

Wm. P. Smith gave expert testimony on behalf of plaintiff that a reasonably skillful motorman could have stopped a car of the type such as is in controversy here and under similar circumstances, when running at a speed of 12 miles an hour, in about 33 feet, and could have stopped it in 30...

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