Toomey v. Wells

• Decision Date: 09 October 1925
• Docket Number: 25035
• Citation: 276 S.W. 64,310 Mo. 696
• Parties: KATHERINE TOOMEY v. ROLLA WELLS, Receiver of United Railways Company, Appellant
• Court: Missouri Supreme Court

276 S.W. 64

310 Mo. 696

KATHERINE TOOMEY v. ROLLA WELLS, Receiver of United Railways Company, Appellant

No. 25035

Supreme Court of Missouri

October 9, 1925

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

Affirmed.

T. E Francis and W. H. Woodward for appellant.

Defendant was entitled to a directed verdict in its favor, because plaintiff's own testimony showed the unusual sudden stop of the car was made by the motorman in compliance with the ordinance pleaded and offered by defendant to avoid killing a lady pedestrian who ran directly in front of and in dangerous proximity to a moving street car. Hurck v. Railroad, 252 Mo. 39; Cleveland City Ry. Co. v. Osborn, 66 Ohio St. 45; Todd v. Mo. Pac. Ry. Co., 126 Mo.App 684; Southern Ry. Co. v. Brooks, 125 Tenn. 260; Craig v. Boston El. Ry. Co., 207 Mass. 548; Dorr v. Lehigh Valley Railroad Co., 211 N.Y. 369; Stewart v. Railroad Co., 86 Vt. 398, 44 L. R. A. (N. S.) 433; State ex rel. Vogt v. Reynolds, 295 Mo. 375.

Walter H. Brady for respondent.

(1) Plaintiff's motion for a new trial was properly sustained. It was a question for the jury to determine when the first appearance of danger to the pedestrian accrued and whether the motorman exercised the degree of care exacted of him under the ordinance after the first appearance of danger to the pedestrian. Johnson v. Springfield Traction Co., 176 Mo.App. 189; Esstman v. U. Rys. Co., 216 S.W. 529; Criss v. U. Rys. Co., 183 Mo.App. 400; State ex rel. Vogt v. Reynolds, 295 Mo. 375. (2) The court properly sustained plaintiff's motion for a new trial, because the Vigilant-Watch Ordinance only requires such stopping of a street car as is consistent with the safety of the passengers thereon. Bunyan v. Citizens Ry Co., 127 Mo. 18; Lyons v. Met. St. Ry. Co., 253 Mo. 158; Williams v. Met. St. Ry. Co., 114 Mo.App. 1; Ruschenberg v. So. Elec. Railroad Co., 161 Mo. 70; Burge v. Railroad Co., 244 Mo. 76. Plaintiff having made a prima-facie case, it was error to direct a verdict for the defendant at the close of the whole case. Godfrey v. St. Paul Ins. Co., 232 S.W. 231; State ex rel. Pabst Brew. Co. v. Ellison, 226 S.W. 577; Gannon v. Laclede Gaslight Co., 145 Mo. 502.

Seddon, C. Lindsay, C., concurs.

OPINION

SEDDON

Action to recover damages in the sum of $ 15,000 for alleged personal injuries suffered by respondent while a passenger upon appellant's street car in St. Louis. The petition alleges: "Plaintiff, for her cause of action against the defendant, states that on or about the 2nd day of March, 1922, she boarded an eastbound Park car of the defendant at the regular and usual place for boarding said Park car on the west side of Grand Avenue on said Park Avenue, for the purpose of going east on said Park car, and plaintiff paid her fare and complied with all the requirements of the defendant and became a passenger on said car of defendant and proceeded to walk through the aisle and toward the front end of said car for the purpose of occupying a seat near the front end of said car, and, while so walking through said car, and while plaintiff was in the exercise of due care, and while said car was proceeding in an easterly direction across said Grand Avenue at a point about the middle of said Grand Avenue, the said car, by reason of the carelessness and negligence of the defendant, through his agents and servants, came to an instant, abrupt, unusual, violent and sudden stop, whereby the plaintiff was thrown with great force and violence from a place in the aisle of said car to the front platform and against the stove and the floor of the front platform of said car, as a result of which she received and sustained serious and permanent injuries."

The answer is a general denial, with the following special defense:

"For further answer and defense defendant says that the car on which plaintiff is alleged to have been a passenger was checked and brought to a stop by reason of the fact that a pedestrian walked in close and dangerous proximity to said car and immediately in front of the same, and that the checking and stopping of the car was not negligence.

"For further answer and defense defendant says that Section 1054, paragraph 4, of the Revised Code of the City of St. Louis 1914, provides:

"'The following rules, regulations and provisions concerning the running and management of street railway cars shall be binding upon every person, corporation or copartnership taking out license under the provisions of this article, or managing, controlling or operating street cars in the city of St. Louis. Fourth. The conductor, motorman, gripman, driver or any other person in charge of each car shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible.'

"And defendant avers that in checking and stopping the car the motorman was complying with the provisions of the above ordinance in that a woman suddenly approached and stepped upon the track immediately in front of and in close and dangerous proximity to the moving street car, and that the checking and stopping of the car in the manner in which it was checked and stopped was necessary to prevent striking and injuring the said pedestrian, and was in obedience to and in conformity with the above ordinance."

The reply is a general denial.

Plaintiff, a married woman fifty-three years of age, boarded defendant's Park Avenue street car at the usual stopping place at or near the southwest corner of Grand and Park avenues about 4:30 o'clock on the afternoon of March 2, 1922. Park Avenue is an east-and-west street, and Grand Avenue is a north-and-south street. The car which she boarded was eastbound on Park Avenue. Plaintiff paid her fare upon boarding the rear platform of the car and proceeded along the aisle of the car toward the front platform for the purpose of taking a seat and, when she had reached about the second front seat of the car, the motorman in charge of the car made a sudden, violent, unusual and unexpected stop, thereby throwing plaintiff onto the front vestibule against a stove and poker and thence upon the floor of the front platform, resulting in certain alleged injuries of a rather serious nature. Plaintiff testified upon direct examination:

" While I was walking forward to take the front seat, so I could get off at Compton, they stopped the car very suddenly, to prevent hitting a woman who ran in front of the car.

"Q. How do you know they stopped to prevent hitting a woman? A. Well, the motorman said he did. . . .

"Q. The motorman's statement was to you that a woman had passed in front of the car? A. That a woman had passed in front of the car.

"Q. And he checked his car suddenly to avoid striking her? A. Yes; it threw me out."

Cross-examination: "Didn't you see this woman cross in front of the car? A. I did, and then --

"Q. You did see the woman? A. Yes, sir.

"Q. Now, this woman crossing in front of the car was coming from the north side of Park Avenue towards the south side? A. Yes, sir. . . .

"Q. Now, this woman crossing the street, was she running or walking? A. That I can't say, either.

"Q. She was moving quite rapidly, wasn't she? A. Yes, sir.

"Q. It was plain to be seen that she was hurrying across the street? A. Yes, she was hurrying. It was foolish for a person to do that.

"Q. In other words, she was so close to the car and her manner of hurrying was such that it attracted your attention? A. Yes. . . .

"Q. This woman who crossed in front of the street car, she was very close to the street car when she tried to hurry in front of it? A. Yes.

"Q. About how many feet? A. That's why he had to jerk up the cars so quick.

"Q. In feet? A. It would have killed her -- . . .

"Q. How far would you say the car stopped from the moment the woman appeared until the car stopped? A. I can't tell you that.

"Q. In any event, it was a few feet; he stopped very suddenly? A. He certainly stopped very suddenly because I was firm on my feet before then, but I am not now.

"Q. Where was this woman when you first saw her, Mrs. Toomey? A. I can't tell; I can't say that.

"Q. About where was she when you first saw her? Was she on the north side of the street? A. She was crossing the track when I saw her. . . .

"Q. This woman appeared in front of the car quite suddenly from the side? A. I couldn't say that, either.

"Q. Was she on the east-bound track when you first saw her, or was she over in the west-bound track when you first saw her? A. Oh, I see what you mean now, she was just -- when the car -- I looked up to see why he -- when the jerk came I wondered what happened and that is when I saw her, just at the jerk, and then I didn't see any more. I couldn't give you any full, definite description at all.

"The Court: The question is, where was she when you say you looked up and saw her when the jerk came? A. In the track.

"The Court: Q. Which one? A. Our car track, the car going east.

"The Court: Q. In the track that your car was on? A. In the track my car was on."

In substance, the fair import from plaintiff's testimony was that, when the sudden stopping of the car occurred, she then saw a pedestrian in the track on which the car was traveling and at a short distance in front of the car. Exactly where the pedestrian came from, or how soon she could have been seen by the motorman prior to that time, plaintiff does not attempt, or was not able, to state. Plaintiff testified that the car was stopped with its front end in or about the center of Grand Avenue. She could not say whether the pedestrian was upon the cross-walk or not; "I don't know if she...