Warner v. St. Louis & M. R. R. Co.

• Decision Date: 25 November 1903
• Citation: 178 Mo. 125,77 S.W. 67
• Court: Missouri Supreme Court
• Parties: WARNER v. ST. LOUIS & M. R. R. CO.

77 S.W. 67

178 Mo. 125

WARNER v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

STREET RAILROAD — INJURY ON TRACK — NEGLIGENCE — EVIDENCE.

1. That a street car company ran its car at the same rate as usual at the place where an injury occurred, though faster than was usual in other parts of the city, was not negligence.

2. Where the motoneer of a street car sounded the gong a thousand feet from the place of accident, and again sharply three times about 160 feet from the place, there was no negligence in this respect.

3. Evidence held insufficient to show that the motoneer of a street car could have seen the person injured in danger soon enough to have checked the car and permitted an escape from the peril.

4. Evidence in an action against a street railway company for death held insufficient to show it guilty of any negligence.

5. The burden is on plaintiff in an action for negligent killing, not only to prove the negligence and injury complained of, but also a causal connection between them.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by Bertha Warner against the St. Louis & Meramec River Railroad Company. From a judgment sustaining a motion to set aside a nonsuit, defendant appeals. Reversed.

McKeighan & Watts and Robert A. Holland, Jr., for appellant. R. L. & John Johnston, for respondent.

MARSHALL, J.

This is an action under the statute to recover $5,000 damages for the death of the plaintiff's husband, Ira B. Warner, on January 22, 1900, on Lockwood avenue, between Gore and Grey avenues, in the town of Webster, alleged to have been caused by being struck and mortally injured by one of defendant's cars, then being run on the defendant's street railroad tracks upon said street. The accident occurred between 7 and 8 o'clock at night, and the petition charges that the night was "quite dark," and the tracks at the point of the accident were "dimly lighted," and the accident is alleged to have occurred about 70 feet east of Grey avenue. The negligence charged in the petition is that "the said car was then and there running east on a down grade at a rapid and dangerous rate of speed, and no bell was sounded nor warning given by said defendant, its agent and employés in charge of said car, until too late to enable said deceased to avoid said collision and escape from his perilous position; that defendant's motoneer in charge of and running said car saw, or by the exercise of ordinary care would have seen, the said peril of plaintiff's said husband at said time and place in time to have stopped said car and avoided said collision, or so checked the speed and delayed said car as would have given said deceased sufficient time to escape from his position of peril upon said tracks, but defendant's said motoneer then and there carelessly, negligently, and recklessly failed so to do." The answer is a general denial and a plea of contributory negligence. At the close of the plaintiff's case the defendant demurred to the evidence. The court sustained the demurrer, and the plaintiff took a nonsuit with leave. The plaintiff moved to set aside the nonsuit. The court sustained the motion on the ground that it had erred in sustaining the demurrer to the evidence, and the defendant appealed from that ruling of the court. As the only question in the case that is open to review in this state of the record is whether the plaintiff made out a case for the jury, the evidence will be stated and considered in the course of the opinion, rather than stating it separately.

1. The error assigned is that the trial court erred in setting aside the nonsuit, because the plaintiff made out no case that entitled her to go to the jury. In cases of this character this court has always refused to interfere with the discretion of the trial court in granting one new trial to a party litigant, unless the case was such that under no circumstances whatever could a verdict in favor of the plaintiff be allowed to stand. Hoepper v. Southern Hotel Co., 142 Mo., loc. cit. 387, 44 S. W. 257; Haven v. Railroad, 155 Mo., loc. cit. 229, 55 S. W. 1035, and cases cited. The facts disclosed by the evidence are that the defendant is an electric street railroad, and has a line of double tracks on Lockwood avenue, in the town of Webster. The poles that carry the trolley wire are located between the tracks. Between Gore avenue and Jefferson Barracks Road — a distance of over 1,000 feet — the track is straight. Between Grey avenue and Silent avenue there is a depression in the street, so that looking westwardly from a point at any place between Gore and Grey avenues only the top of the car can be seen, but the noise made by the running of the car can be easily heard. Between Gore and Grey avenues there were three trolley poles — one about 70 feet east of the east line of Grey avenue, one 113.5 feet east thereof, and the third 114 feet east of the second. It was customary for vehicles traveling west on the north side of Lockwood avenue, and desiring to go south to Grey avenue, to cross the defendant's tracks between the first and second or between the second and third of these trolley poles, instead of waiting until they reached Grey avenue. On the night in question a car of the defendant was going eastwardly on Lockwood avenue. It was running at the usual rate of speed, which is shown to be faster than cars usually run in the city of St. Louis, but no faster than the defendant's cars usually run at that place. The gong was sounded at Rock Hill Road, which was about 1,000 feet west of Grey avenue. The gong was also sounded sharply three times when the car approached Grey avenue, and which was about 160 feet west of the first trolley pole above described. The car ran on eastwardly until it neared Gore avenue, which is 350 feet east of Grey avenue, when it was stopped, and the motorman said he had hit "some one" or "something," and had to go back to find out what it was. He and the passengers on the car then went back towards Grey avenue. When they reached the first trolley pole east of Grey avenue they found a two-wheel cart, with the left wheel fastened around the trolley pole, and the ends of the shaft resting on the north rail of the east-bound track, and such ends were crushed, showing they had been run over by the car. They also found the body of the deceased lying between the east and west bound tracks, with his head towards the east-bound track, and about 10 feet east of the trolley pole, to which the cart was...