Trigg v. Water, Light & Transit Co.

• Decision Date: 23 December 1908
• Court: Missouri Supreme Court
• Parties: TRIGG v. WATER, LIGHT & TRANSIT CO.

114 S.W. 972

215 Mo. 521

TRIGG v. WATER, LIGHT & TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

1. STREET RAILROADS (§ 93)—PERSONS NEAR TRACK—MOTORMAN'S DUTY.

A motorman, who mistook one lying near the track for a clump of dirt, was not legally bound to stop the car or slacken its speed before reaching him.

2. STREET RAILROADS (§ 114)—USE OF TRACK BY PEDESTRIANS — EVIDENCE — WEIGHT AND SUFFICIENCY.

Evidence held to show that decedent was not using a footpath along a street railway track when struck by a car, and insufficient to show that persons ever used for any purpose the embankment upon which he was killed.

3. MUNICIPAL CORPORATIONS (§ 703) — STREETS—RIGHTS OF PEDESTRIANS.

A pedestrian has the right to use all parts of a street consistent with the legal uses to which it is devoted.

4. STREET RAILROADS (§ 93)—PERSONS NEAR TRACK—COMPANY'S DUTY.

Though, technically, it was a motorman's duty to keep a careful lookout for pedestrians, he owed no duty to keep a lookout for decedent, who was lying near the track, in the nighttime, at a point not used by pedestrians.

5. STREET RAILROADS (§ 93) — SPEED — REASONABLENESS.

That a street car ran at a rate of from 12 to 20 miles an hour, through a sparsely settled part of town, does not show recklessness or danger to pedestrians, where the track was elevated upon an embankment, and where there was little, if any, travel at that time of night.

6. NEGLIGENCE (§ 83)—CONTRIBUTORY NEGLIGENCE —PROOF REQUIRED OF PLAINTIFF.

Where contributory negligence appears in an action for personal injury, before plaintiff can recover, he must show that, after defendant discovered the injured person's peril, or by using ordinary care could have discovered it, he could have avoided the injury by using reasonable care.

Lamm, J., dissenting in part.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by Minnie Trigg against the Water, Light & Transit Company. From an order granting a new trial on verdict for defendant defendant appeals. Reversed, with directions.

The plaintiff instituted this suit in the circuit court of Carroll county against the defendant to recover the sum of $5,000 damages sustained by her for the alleged negligence in killing her husband, Charles Trigg. There was a trial had before the court and jury, which resulted in a verdict and judgment for defendant, and in due time plaintiff filed her motion for a new trial, which was by the court sustained. From this order of the court sustaining said motion, the defendant duly appealed the cause to this court.

The petition, in substance, charges: That the accident, which resulted in the death of Charles Trigg, respondent's husband, occurred on South Main street in the town of Carrollton, where the track of appellant was practically straight, and the view unobstructed for a long distance; that pedestrians and footmen had for a long time prior thereto used said track traveling between the city of Carrollton and the town of South Carrollton; that appellant had knowledge of such user; that at the time of the accident the said Charles Trigg was upon appellant's railway track in a sitting or reclining position; that appellant's servants and employés saw, or by the exercise of reasonable care and diligence could have seen, him in such dangerous position in time to have averted the injury and accident which resulted in his death, but negligently conducting themselves in the premises, and unskillfully managing and operating said car, and failing to sound the usual and ordinary danger signals, and running and propelling said car at a reckless and unusual rate of speed, ran its car against the said Charles Trigg and wounded, cut, and bruised him, from the effects of which he died. The answer contained, first, a general denial of the allegations of the petition. Then, after admitting the incorporation of defendant, specially pleaded contributory negligence as a defense to the action alleged in plaintiff's petition in this: First, that respondent's husband, Charles Trigg, at a late hour of the night, voluntarily went upon appellant's railway track and assumed a place of danger by lying down upon the dump or embankment upon which the tracks of the railway were laid, in dangerous proximity to cars passing on said track, and neglected to look and listen for the approach of cars on said track, when by looking he could have seen, or listening could have heard, the approach of cars in time to have gotten to a place of safety; and, second, that said Charles Trigg was in such a state of intoxication that he did not exercise ordinary care, prudence, and caution to prevent and avoid danger to himself. It appears that the parties went to trial without a reply having been filed.

The facts of the case, as disclosed by the record, are substantially as follows:

At the time of the injury and death of Charles Trigg, he was the lawful husband of the plaintiff. That the defendant was a street railway corporation owning and operating a street railway with electric power in the town of Carrollton, a city of about 4,000 inhabitants. The track was a single one, extending from the public square in said city south to the Wabash Railway Company's depot, located in South Carrollton, about one mile from the public square. The depots of the Burlington Railway and Santa Fé are situated on the line of said street railway. The principal, if not the only, traffic defendant is engaged in, was in carrying passengers to and from Carrollton to said depots. From the intersection of the track of the street railway with those of the Santa Fé for a distance of some 450 feet south, the former runs along the west side of South Main street, and is located on an embankment which is about 3 feet in height, and is about the same distance above the grade of the traveled portion of the street. About 400 feet south of the Santa Fé crossing, the street railway track has a slight curve, about three degrees, to the southwest, leaving the street, and crosses the Wakenda creek bottom west of the Wabash Depot. The Santa Fé Depot is about one-half mile from South Carrollton, and the ground between the two is a low bottom, and the street railway track is located upon trestles much of that distance. There are but three houses located in this bottom along said street and track. The traveled portion of Main street lies east of the street railway track and runs almost parallel with it and due south across the Wabash tracks a short distance east of the Wabash Depot. Pedestrians, with the knowledge and acquiescence of defendant, had for years prior to the time of the injury used said street car track as a path or passway between Carrollton and South Carrollton.

The injury to Charles Trigg occurred at night on September 10, 1904, about 12 o'clock, at a point on the east side of the track about 450 feet south of the intersection of the street railway track with those of the Santa Fé. The car which struck deceased had been to the Wabash Depot to meet passengers who got off the Wabash train due there between 11 and 12 o'clock. There were many passengers got off that train and took passage on the street car for Carrollton. Between the time the street car passed over the Santa Fé tracks going south to the Wabash Depot, and the time it returned with said passengers, a train from the west came into Carrollton on the Santa Fé road. Deceased resided in Carrollton, and had been at Norborne that day, and had returned home on the Santa Fé train before mentioned. When Trigg left the train at Carrollton, he was in a state of intoxication. He staggered about the platform, and then went east in the direction of Main street, and turned south on Main street in the direction of the place where the injury occurred. He was seen no more until the injury occurred. Mr. Trigg laid down on the east side of the embankment at the point where the street car track begins to curve to the southwest, and where it is laid along and upon the embankment before mentioned. He was lying on his back, with his head toward the top of the embankment between or near the east end of two cross-ties, with his feet projecting down the slope of the embankment towards the traveled portion of Main street. The ends of the ties extended beyond the east rail some 16 inches. The space between the two ties was not well filled with ballast, thereby leaving a depression, the exact depth of which is not clearly shown. No portion of his body extended much, if any, above the top surface of the east end of the ties. Weeds had grown up along the east slope of the embankment, but had been cut for a distance of some 12 inches east of the east end of the ties; but the evidence fails to show just how high the weeds were at the time of the accident, except that they obstructed the view of his body, which was lying east of the strip from which the weeds had been cut.

As the car was returning from the Wabash Depot in South Carrollton with its load of passengers, it was running from 12 to 20 miles an hour, and, when it reached a point about 25 feet from where Trigg was lying, the motorman saw him in the position before stated. The plaintiff introduced evidence tending to show: That the motorman in charge of said car said, immediately after the accident occurred, that he saw deceased when the car was about 175 or 200 feet from where he was lying, but that he thought he was a clump of dirt lying by the side of the track; that, immediately upon discovering Trigg, the motorman applied the brakes and other appliances which were at his command and exerted every effort within his power to stop the car and avert the injury. The efforts put forth by him were so effective that the speed of the car was so greatly and suddenly slackened that it was perceptibly noticed by all the passengers, and caused the car to jump and bound as if running over the ties, and so alarmed some of them that they left their seats...