Voelker Products Company v. United Railways Company of St. Louis
| Decision Date | 03 November 1914 |
| Citation | 170 S.W. 332,185 Mo.App. 310 |
| Parties | VOELKER PRODUCTS COMPANY, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Repondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Geo. H. Shields Judge.
AFFIRMED.
Judgment affirmed.
McPheeters & Wood for appellant.
(1) It is elementary law in this State that a demurrer to the evidence admits as true every fact and inference that may be reasonably deduced therefrom Strauchon v. Railroad, 232 Mo. 587; Crossett v. Ferrill, 209 Mo. 704. (2) Unless the only conclusion that can reasonably be drawn from the evidence is that the plaintiff was guilty of contributory negligence, a demurrer to the evidence should be overruled. It is only when the evidence is such that there can reasonably be no two opinions on the subject that the court should sustain a demurrer. Campbell v. Railroad, 175 Mo. 161; Erickson v. Railroad, 171 Mo. 647. (3) Ordinary care does not require the traveler to constantly look and listen at all points of his approach to a railway crossing and while upon the track. If he looks and sees no car approaching he should not be held guilty of negligence as a matter of law in attempting to cross, if, in view of the distance for which the track appears to be clear he would have time to cross before a train or car going at the usual and lawful rate of speed would reach the crossing. Strauchon v. Railroad, 232 Mo. 587; White's Supp. to Thomp. Neg., p. 318, sec. 1669; Maloney v Railroad, 167 S.W. 471; Hamm v. Railroad, 167 S.W. 1075; Criss v. Railroad, 166 S.W. 835; Lagarce v. Railroad, 166 S.W. 1063.
Boyle & Priest, Morton Jourdan and T. M. Pierce for respondent.
(1) The appellant's chauffeur was guilty of negligence as a matter of law, even giving him every permissible indulgence in his favor. McCreery v. Railroad, 221 Mo. 31; Hamm v. Railroad, 167 S.W. 1070. (2) The appellant's chauffeur cannot claim that he relied upon the presumption that the car would be operated at a speed in conformity with the municipal ordinance, because he remained silent upon that subject when testifying. If he relied upon the observance of the Speed Ordinance, he could have said so but the record is perfectly barren of any such evidence. Mockowik v. Railroad, 196 Mo. 571; Strauchon v. Railroad, 232 Mo. 591. (3) The appellant's chauffeur was guilty of negligence in driving towards the track at a rate of speed of six miles an hour from a position of safety twenty-five feet away without further looking or attempting to stop, since such operation of an automobile was not the exercise of the highest degree of care which a very careful person must use according to section 8523, R. S. 1909.
This is a suit for damages accrued to plaintiff through the alleged negligence of defendant in running its street car against plaintiff's automobile truck. The court peremptorily directed a verdict for defendant and plaintiff prosecutes the appeal.
The specifications of negligence relied upon in the petition are two in number--first, that the defendant operated its street car in violation of the Speed Ordinance prescribing fifteen miles an hour as the limit at the point of collision; and, second, that it omitted to sound an alarm as by ringing the gong attached to the car, required by another ordinance. Besides a general denial, the answer pleads contributory negligence on the part of the driver of plaintiff's automobile truck.
The evidence tends to prove that defendant was negligent, in that its street car was being operated at the time of the collision in violation of the city ordinances referred to, at the rate of thirty miles per hour, and that no gong was sounded. But the court directed a verdict for defendant as for the negligence of plaintiff's driver, and the question in the case for consideration relates to that matter.
The place of the collision was at the crossing of Nebraska avenue and Meramec street, in the city of St. Louis. Nebraska avenue is an ordinary street, running north and south, while Meramec street runs east and west. Meramec street is a public thoroughfare of average dimensions, with a sidewalk laid on either side of the street. In the center of Meramec street defendant maintains and operates two street car tracks. The track farthest south is occupied by eastbound cars, while the track farthest north by those going west. There is space used as a driveway for wagons and teams and other vehicles between the sidewalk on the south and defendant's street car tracks, and a like space on the north side of defendant's tracks and south of the sidewalk along the north side of Meramec street. At the southwest corner of Meramec street and Nebraska avenue is situate a convent, which is inclosed by a heavy stone wall abutting against the sidewalks of Nebraska avenue and also on Meramec street. Within the stone wall around the convent grounds and outside along the sidewalk are trees and shrubbery, which tend to obstruct the view to the westward before going upon the street proper. On the southeast corner of Nebraska avenue and Meramec street a large brick building, occupied by a store, stands flush with the line of each street.
At the time of the collision involved here, plaintiff's driver was traveling north, on the east side of Nebraska avenue seated on the forward end of a large automobile truck laden with eggs, when one of defendant's cars from the westward collided therewith. This car it is said, was running about thirty miles per hour at the time. The evidence for plaintiff tends to show that its driver was propelling the automobile truck at about twelve miles per hour until he approached near the south line of Meramec street, when the speed was reduced to about five or six miles per hour. The driver of the automobile truck says that immediately before reaching the south line of Meramec street, and while about thirty-five or forty-five feet south of defendant's car track, he looked to the west for an approaching street car and listened as well, but observed none though his vision was unobstructed for as much as one hundred feet. Observing no car from that direction, the driver approached the tracks at about five or six miles per hour, and looked to the eastward for a car approaching from that direction, whereupon he looked again to the westward for a car, when the view was open for 125 feet to the west, but observed no car approaching. He says his view at this time, beyond the 125 feet to the westward, was obstructed by the heavy stone wall around the convent at the southeast corner of Meramec street and Nebraska avenue and the shrubbery and trees adjacent to the convent grounds,...
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