Story v. St. Louis Transit Co.

• Decision Date: 29 November 1904
• Citation: Story v. St. Louis Transit Co., 108 Mo. App. 424, 83 S.W. 992 (Mo. App. 1904)
• Court: Missouri Court of Appeals
• Parties: STORY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 992

108 Mo. App. 424

STORY v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

STREET RAILROADS—CROSSING ACCIDENT—CONTRIBUTORY NEGLIGENCE — JURY QUESTION — DEMURRER TO EVIDENCE—NEGLIGENCE—SPEED OF CAR—CITY ORDINANCE — PRESUMPTIONS— INSTRUCTION.

1. In an action against a street railroad for personal injuries and damages to carriage and horses on being struck by an east-bound car while driving across defendant's tracks, testimony of the plaintiff that a west-bound car, which he had stopped his horses to allow to pass, was an open one, which he could see through, so that his view of the approaching east-bound car which struck the carriage was unobstructed for 180 feet, and that he looked west and saw no car, is sufficient to warrant a submission to the jury, as against a demurrer to his evidence; there being evidence tending to show that the east-bound car was running 20 or 30 miles an hour.

2. The speed at which a street car may be run at the intersection of streets traveled by the public at all hours of the day and night is fixed by the conditions and surroundings, rather than by an ordinance of the city limiting the speed to a certain number of miles an hour, applicable to the district where an accident occurs.

3. That every street car is furnished with a gong is a matter of common knowledge, which the jury is presumed to possess; and hence an instruction submitting to the jury to find whether the motorman negligently failed to give timely warning to a person attempting to cross the tracks is not objectionable for failing to state in what manner the warning should have been given.

4. In an action against a street railroad for injuries by being struck by a car while driving across defendant's track, a charge that plaintiff was entitled to recover if the motorman failed to exercise ordinary care to stop the car after he saw, "or by the exercise of ordinary care might have seen," the plaintiff in a dangerous position on or near the track, was not prejudicially erroneous, as introducing a new element of negligence, because the complaint charged that the motorman failed to stop the car after he saw plaintiff's perilous position; the evidence being uncontradicted that the plaintiff was not seen and could not have been seen by the motorman in time to have avoided the collision.

5. Where a city ordinance limits the speed of street cars to 10 miles an hour, a person driving on the street, who, before going on a street car track at the intersection with another street, looks and listens for an approaching car, and neither hears nor sees one, and, in the exercise of ordinary care, drives on the track, is entitled to recover from the street railroad for injuries suffered by being struck by a car running at a speed in excess of 10 miles an hour at the time of, and just prior to, the collision, when the excessive speed was the proximate cause of the collision.

Appeal from St. Louis Circuit Court; Jas. R. Kinealy, Judge.

Action by Andrew O. Story against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

About the hour of 1 a. m. July 5, 1903, plaintiff was driving his carriage south on Nineteenth street, in the city of St. Louis. At the intersection of Nineteenth and Olive streets his carriage and horses were struck by an east-bound car on Olive street, resulting in the breaking of his forearm, the death of his two horses, and the demolishing of his carriage. The suit is to recover the damages incurred.

The petition is in two counts. In the first count the following acts of negligence are alleged: "(1) Omitting to use reasonable care to run said car at an ordinary rate of speed, but, on the contrary, then and there causing it to run at a dangerous rate of speed, so that it was not under reasonable control. (2) Failure to use ordinary care in giving signals of warning by the bell of said car. (3) In omitting to use ordinary care to stop the car in time to avoid the collision after such agents and servants discovered plaintiff's team in a position of danger upon the track, and at a distance sufficient to have permitted the car to have been stopped, had said agents and servants been then and there in the exercise of ordinary care." The second count predicates plaintiff's right to recover on what is known as the "Speed Ordinance," which limits the speed at which street cars may run to 10 miles an hour, in the district where the collision took place. The answer to each of these counts was a general denial and a plea of contributory negligence.

Plaintiff's evidence tends to show that he was driving south on Nineteenth street, and when he arrived at about the building line of Olive street he heard a car bell to the east, looked in that direction, and saw a car traveling west on the north track (there being double tracks on Olive street), and he stopped his horses until this car passed. After the car passed, he testified, he could see west halfway the block (180 feet). He looked west and saw no car, then looked east and saw none, and heard no car bell, and proceeded across Olive street. When his horses were on the south track, he saw a car on that track traveling east at a rapid rate of speed, and close upon him, and was unable to get over the track in time to avoid the collision; the car striking his horses and carriage, throwing him into the air, and carrying or pushing his horses on for about 100 feet before the car was stopped. One horse was killed outright, and the other was so badly injured that he had to be shot, and the carriage was badly smashed. Plaintiff had a broken forearm, and was externally and internally bruised and injured. Plaintiff also testified that he had driven carriages in St. Louis for a number of years, was familiar with the locality where the collision occurred, and knew there was a double track on Olive street, over which cars pased both east and west at frequent intervals. Several other witnesses who were at or near the scene of the accident testified for plaintiff. They all stated that the car was running at a rapid rate of speed; one estimating the speed at 18 miles per hour, and four or five others estimating it at from 20 to 30 miles per hour, and all testifying that they did not hear any car bell ringing. On the part of defendant, the evidence tends to show: That the car was traveling from 7 to 10 miles per hour, and that the motorman sounded the gong in the middle of the block between Nineteenth and Twentieth streets. As soon as the car traveling west cleared the crossing at Nineteenth street, plaintiff drove his carriage immediately behind and so near in front of the car going east that it was impossible to stop it in time to avoid the collision. That the moment plaintiff's carriage came in view, the motorman did all in his power to stop the...