Ulrich v. Grand View R. Co.

• Decision Date: 08 June 1923
• Docket Number: No. 23173.,23173.
• Parties: ULRICH v. GRAND VIEW R. CO.
• Court: Missouri Supreme Court

252 S.W. 377

ULRICH v. GRAND VIEW R. CO.

No. 23173.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

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

Action by Paul Ulrich against the Grand View Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

S. D. Flanagan and John B. Reno, both of St. Louis, for appellant.

E. McD. Stevens, of Clayton, for respondent.

Statement.

WOODSON, C. J.

This suit was instituted in the circuit court of St. Louis county by the plaintiff against the defendant to recover $20,000 damages for personal injuries received through the alleged negligence of the defendant.

The trial resulted in a verdict and judgment in favor of the defendant, and after moving unsuccessfully for a new trial, plaintiff appealed the cause to this court.

No question is raised as to the sufficiency of the pleadings, so we put them aside. The evidence for the plaintiff tended to show that defendant owned and operated a system of electric railroad as a common carrier of passengers over a line of tracks beginning at a point within the limits of the city of St. Louis known as Broadway, and thence running west to the city limits, and thence south through St. Louis county. That for months and years prior to the time of the injury to plaintiff the right of way and tracks of defendant had been constantly used by the public as a footpath and passway, with the knowledge and acquiescence of defendant. Plaintiff arrived at the depot of defendant at 6:30 p. m. with the intent and purpose to become a passenger on one of defendant's cars, that the car had just pulled out, and being of the mind that he could not overtake same, started, as was his custom, to walk westwardly down said tracks of defendant. That on the night of the injury it was dark and misty, rain was falling in a drizzle. That after plaintiff had proceeded down the track about 100 feet, defendant reversed the motion of its car without warning and ran it backwards upon and struck the plaintiff, causing him to sustain a broken right leg and hip and other injuries, resulting in the permanent lameness of the injured leg. That there was in force at that time within the city of St. Louis an ordinance by which it was provided that motormen and conductors of each car should keep a vigilant watch for persons on foot, either on the tracks or moving towards the tracks, and upon first appearance of danger to such person the car should be stopped within the shortest time and space possible. That in violation of the ordinance, the motorman failed to keep a vigilant watch and failed to stop said car upon the first appearance of danger, and that the motorman negligently and carelessly caused said car to travel backwards without warning or signal and carelessly and negligently caused said car to strike plaintiff, producing the alleged injuries.

Plaintiff testified that the car had pulled out and was proceeding westward; that he started to walk towards his home, down the center of the tracks of defendant's right of way, and that he had proceeded about 100 feet when he was struck by defendant's car and sustained injuries resulting in a permanent condition of lameness, whereby his right leg became 1½ inches shorter than his left leg; that no signal was given, no light was visible, and no sound was made by the car as it came back; that for many years it had been the custom of plaintiff to walk down the tracks of defendant, and that many others did the same.

George W. Baumhoff, president of defendant company, testified that the defendant owned and operated a line of electric street railway, known as the Grand View Railroad Company, and that all cars run over the same were owned and operated by defendant, and that he knew that the tracks and right of way of defendant had for long times been used by the public as a footpath and passway, and that it was sought to prevent such use by placing "no trespassing" signs at the termini of the road.

Dr. Richter identified X-ray photographs showing the injury to plaintiff's leg and hip, and stated that in his opinion the injury would result in a permanent lameness of the plaintiff, and that his right leg was 1½ inches shorter than the left leg, due to the injury, and would remain so.

Mrs. Lottie McCann testified that she was a passenger on one of defendant's cars on the night in question, and that the motorman reversed "the brakes" (current) and caused the car to travel backwards without giving a signal; that she had frequently seen the motorman reverse the power and cause the car to travel backwards after it had pulled out, upon signal from some belated passenger; that the car was brought to a sudden stop, and the plaintiff was brought into the car all covered with blood; that she had for years used the tracks and right of way of defendant in going to and from her home and had seen others make a similar use of same.

The deposition of Gustave Rathert, a private soldier in the service of the United States Army, was read in evidence, wherein he deposed that he was on a furlough, and on the night in question he arrived at the station on his way to his boarding house just as the car of defendant drew out, and proceeded to walk down the tracks; that he saw the form of a man in front of him walking down the track; that witness was walking between the roadbed of defendant and a fence, and that the car came back suddenly, and without warning; that he did not hear the car coming back, nor see it; that he heard some one call as if in pain and then proceeded on his way; and that he did not know plaintiff at the time.

Emil Kuester testified that on the night in question he was riding on the front platform of defendant's car, and that after the car had pulled away from the station somebody whistled, and the motorman reversed the motion of the car and caused the car to travel backwards without signal or warning of any kind and no lights; that he, George Stevens, the motorman, and Arch Nichols, got off the car and picked up the plaintiff, who...