Union Biscuit Co. v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Parties: UNION BISCUIT CO. v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

83 S.W. 288

108 Mo. App. 297

UNION BISCUIT CO. v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

STREET RAILWAYS — COLLISION WITH TEAMS — CONTRIBUTORY NEGLIGENCE — LAST CLEAR CHANCE.

1. It is the duty of one driving a team on the tracks of a street railway to look back at intervals for a car, if possible.

2. The negligence of the driver of a team in failing to look back for approaching street cars will not defeat a recovery for injuries resulting from a collision, where the accident occurred in daylight, and on a straight track, where the wagon and its driver were in plain sight of the motorman for nearly a thousand feet, so that fair-minded men might conclude that the motorman had the last chance to avoid the collision.

Appeal from St. Louis Circuit Court; R. M. Foster, Judge.

Action by the Union Biscuit Company against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Jamison & Thomas, for respondent.

GOODE, J.

This plaintiff sues for damages for injuries done to a wagon, harness, and goods by a collision with a trolley car of the defendant company November 28, 1900. The accident occurred on the Tower Grove Avenue Line at its intersection with McCree avenue between 7 and 8 o'clock in the morning. The colliding car was running south over the west one of the double tracks of the defendant on Tower Grove avenue. The driver of the wagon was T. F. Leiber. According to his statement he drove on the track at Young's store, some 700 or 800 feet north of where he was struck. From that point he proceeded along the same track, without looking back, and traveling at a pace of about six miles an hour, until the car overtook and struck him. It is charged that the car was running more than eight miles an hour, in contravention of a city ordinance, and that the motorman neglected to keep vigilant watch for persons on the track, and stop the car as soon as possible after he saw the wagon on it. There was evidence to support the case pleaded. There was also testimony for the defendant that the wagon was not running on the west track where it was overtaken, but on the east track; that suddenly, when the car was near, it veered on the west track immediately in front of the car, so that it was impossible to prevent a collision. The driver, Leiber, is charged to have been guilty of negligence which is said to preclude a recovery.

In this case the essential dispute between the parties was as to whether the plaintiff was traveling on the same track the colliding car was, and ahead of the latter, for several hundred feet, or whether he was traveling on the east track, parallel with the west one, on which the car was moving, for a considerable distance, and suddenly turned over to the west track as the car was near him, thus bringing on the collision. That issue was settled by the jury in the plaintiff's favor, and on advice from the trial court which leaves this court no cause to interfere. The jury were told that it was the duty of the driver of the wagon to look and listen for a car before he attempted to cross the defendant's track, and, if the jury found that he failed to do so, and failed to stop his team when the circumstances required him to stop before crossing the track, and that by reason thereof he directly contributed to the injury, plaintiff could not recover. And again, that, if the motorman of the car saw the wagon traveling on the east track, or east of the west track, the motorman had the right to assume the driver would use care to avoid a collision with the car, and rely on such assumption, and was under no legal duty to stop or check the speed of the car until he saw the driver did not intend to exercise such reasonable care. Again, that, if the motorman saw the driver of the wagon attempting to cross the track, and used all the means at hand to stop the car and avoid a collision, but was unable to do so, the verdict should be for the defendant. And again, that, although the company's servants were guilty of negligence...