Treadway v. United Rys. Co.

• Decision Date: 12 March 1926
• Docket Number: No. 26188.,26188.
• Citation: 282 S.W. 441
• Parties: TREADWAY v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

282 S.W. 441

TREADWAY v. UNITED RYS. CO. OF ST. LOUIS.

No. 26188.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Motion for Rehearing Denied April 12, 1926.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

Action by Elton Treadway by Paralee Treadway, his next friend, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis and Austin E. Park, all of St. Louis, for appellant. Arthur V. Lashly and Stout & Spencer, all of St. Louis, for respondent.

LINDSAY, C.

This is the second appeal in this case. Upon the first appeal the judgment for plaintiff was reversed and the cause remanded for error in plaintiff's instruction defining the measure and the character of the sum sued for. Treadway v. United Railway Co., 253 S. W. 1037, 300 Mo. 156. The plaintiff, a minor, by his next friend, sued on account of the death of his father, Marion Treadway, caused, when an automobile in which the latter was riding, but driven by William Treadway, was struck by a work car of defendant at the crossing of Page avenue and defendant's tracks. The place is outside the west limits of the city of St. Louis. There has been an amended petition filed, but the issues are as set out in the opinion upon the first appeal.

The petition charged that defendant negligently operated the car at a high and dangerous rate of speed, failed to keep a vigilant watch, failed to sound a gong or other warning, and failed to stop the car in observance of the humanitarian doctrine.

The answer was that William Treadway, driver of the automobile, was physically incompetent to operate it, which was known to Marion Treadway; that Marion Treadway permitted William to back the automobile out of a narrow driveway suddenly, and without warning, onto defendant's tracks, so that the on-coming car could not be stopped in time to prevent a collision; and that Marion Treadway carelessly and negligently permitted William Treadway so to operate the automobile when he saw or heard, or, in the exercise of ordinary care, could have seen or heard, the car in time to stop the automobile and avoid an injury; that at said time Marion Treadway, in the exercise of ordinary care, could have seen or heard the car in time to have stopped the automobile, but failed to look or to listen. The answer also contained a general denial, and the reply was a general denial.

Page avenue extends east and west, and defendant's tracks extend from north to south across it. Defendant maintains two tracks at that point, and the work car was moving south on the west track. On the west side of defendant's tracks, and on the south side of Page avenue, was a building fronting north on Page avenue and extending back southward, approximately 100 feet. William Treadway had his store and also his living quarters near the back part of this building. He was a man fully grown, and was an adopted, or foster son, of Marion Treadway. Marion Treadway was then 54 years of age, and lived at Graniteville, Mo., but at this time was visiting William Treadway for a few days. On the east side of this store building was a private driveway, extending from Page avenue southward. There was a fence, or line of posts, between the driveway and defendant's tracks. The west track of defendant was about 6 or 8 feet east of this driveway.

On the occasion in question, which was about 9 o'clock in the forenoon, William Treadway intended to drive to Clayton, and asked his father to go with him.

The automobile, the property of William Treadway, was a Maxwell, and had what is spoken of as a winter top, but the front side curtains were up. William Treadway backed his automobile from the garage, northward, along the driveway to in front of his store, and was there joined by Marion Treadway, who took the front seat, and sat on the right side of William Treadway, the driver. From that point William Treadway backed the car north along the driveway to the entrance into Page avenue. He there stopped to look. The automobile was then facing south, and William Treadway, in the driver's seat, was on the east side.

His testimony was that when he stopped he put his head out of the automobile and back north up defendant's tracks; could see for about three-fourths of a block; and saw nothing of any car. He inquired of Marion Treadway if he saw anything, who replied that he did not. William Treadway then backed the automobile out on Page avenue, backing to the north and east, until the rear part of the automobile was upon defendant's west track. At this time, and before he was able to move the automobile clear of the track, a work car of defendant, coming southward, struck the automobile.

As to the statements foregoing, there is little or no conflict in the testimony. There is conflict as to the speed with which the automobile was backed out into Page avenue and upon the track, and conflict as to the speed of defendant's work car as it approached the point of collision, and conflict (in this trial) upon the question whether a gong or warning was sounded by defendant, and the amount of noise made by the car, which, according to defendant's employees, was coasting down grade as it approached the crossing. At the close of the plaintiff's case, and at the close of the whole case, defendant requested a peremptory instruction in the nature of a general demurrer, which the court refused to give. The refusal is assigned as error, and under this counsel for defendant insist that plaintiff was not entitled to recover under the last clear chance doctrine, nor under the negligent speed theory, and that under the latter Marion Treadway, as a guest passenger in the automobile, was guilty of contributory negligence as a matter of law.

The foregoing questions were raised on the former appeal; the evidence was reviewed at length; and it was held that plaintiff made a case for the jury.

Counsel renew the contention upon the theory that our former ruling was not justified under the law and the evidence, and also so upon the claim that the evidence upon the second trial is different from that given in the first trial, and ask that the different aspects of the record now, and those stated in the former opinion, be considered. The authorities cited now upon the question are those cited before, without important additions. The evidence upon the second trial is not materially different from that in the former.

The testimony of Wm. Treadway upon the first trial was read, as was also the testimony of Dr. Westover. The latter was the witness mentioned in the former opinion, who saw the defendant's car as it crossed Madison street, two blocks north of Page avenue, and who testified that it was moving at a speed of 35 or 40 miles an hour at that time, and that it was a down hill grade from Madison street to Page avenue, and on beyond Page avenue.

Other testimony for plaintiff upon the second and trial was that the speed of the car as it passed Page avenue was from 20 to 25 miles an hour. Upon the second trial the only witnesses called by defendant were McMahon, the motorman, and Grisham, a coemployee in the car, who stood to the right of the motorman as the car approached Page avenue. The car was a cinder car; was empty; and the motorman, standing at the front end, was several feet above the track.

Upon the first trial, as shown by the testimony as set out in the opinion, McMahon said, as he came toward Page avenue he slowed down to about 2 or 3 miles an hour, and, just as he started upon the crossing, the automobile backed in. He said then he was about 15 feet from Page avenue when he first saw the automobile standing at the entrance to Page avenue.

Upon the second trial he testified that at the time of the collision the car was going about 4 miles an hour. Grisham says the "motorman slowed up to about 4 or 5 miles an hour, going down there to Page avenue, and started on across Page avenue, and, as we started on across Page avenue, he released the brakes, and gave her two or three points of power, and started to cross Page avenue, and this automobile came down backing from the west on Page avenue." Grisham made this statement, literally (253 S. W. 1037, 300 Mo. 168), on the first trial, except that then he said "three or four points." Again on this trial McMahon testified:

"When I was crossing Page avenue, why, the auto was standing on the south side of Page avenue, and he backed around into the car just as I came on Page avenue."

Later, he said the automobile, when he first saw it, was standing still, "on the private right of way there next to the store;" that the automobile, when it began to back up was about 12 feet from the tracks; and "that the car at that time was about 40 or 50 feet north of Page avenue"; that he applied the brake at the time he first saw the automobile. On his cross-examination McMahon said:

"Q. Now, how far away from ?age avenue were you when you first saw this car standing there? A. About 75 feet."

Grisham testified:

"Q. Well, when did you first—or where was this automobile when you first saw it? A. It was backing up from down Page avenue, backing east, coming in toward the car track."

He then said the automobile was then 10 or 12 feet from the car tracks, when it was coming backwards; that it "was backing up very fast—about as fast as you could run." The testimony of William Treadway was that the automobile was moving slowly. Defendant's witnesses said the car coasted down toward Page avenue, and made less noise when coasting than when running under power, but said the car was making a "good deal of noise."

Counsel for defendant insist that "the last clear chance doctrine will not support a verdict." They say there is no proof, direct or inferential, as to the relative positions of the automobile and the street car with reference to the point of collision, and no showing as to the distance within which the...