Warner v. St. Louis & Meramec River Railroad Co.

• Decision Date: 25 November 1903
• Citation: 77 S.W. 67,178 Mo. 125
• Parties: WARNER v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

77 S.W. 67

178 Mo. 125

WARNER v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

November 25, 1903

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

Reversed and remanded (with directions).

McKeighan & Watts and Robt. A. Holland, Jr., for appellant.

(1) The court erred in setting aside the nonsuit and granting plaintiff a new trial, because there was no evidence whatever of any negligence on the part of defendant. (2) The court erred in setting aside the nonsuit because even if it were granted, for the purpose of argument, that there was evidence of negligence on the part of defendant's motorman, there was no evidence whatever, direct or circumstantial, showing any causal connection between such negligence and the death of Warner. It is incumbent upon plaintiff in a suit of this kind to establish not only negligence on the part of defendant, but also a causal connection between such negligence and the injury sustained. Fuchs v. St Louis, 167 Mo. 620; Bailey on Master and Servant (1897) pp. 1659 and 1660; Sorrenson v. Penasha Paper Pulp Co., 56 Wis. 338; Searles v. Railroad, 101 N.Y. 661; Taylor v. City of Yonkers, 105 N.Y. 202; Epperson v. Postal Telegraph Co., 155 Mo. 346; Pierce v. Kile, 26 C. C. A. 201. (3) The testimony of plaintiff shows that had the deceased looked or listened he could have seen or heard the approach of the defendant's car in ample time to have avoided being struck. The deceased was, therefore, guilty of contributory negligence as a matter of law, and the court was warranted in giving a peremptory instruction on this ground. Payne v. Railroad, 136 Mo. 534; Yancey v. Railroad, 93 Mo. 433; Kelsey v. Railroad, 129 Mo. 369; Lenix v. Railroad, 76 Mo. 86; Culbertson v. Railroad, 140 Mo. 35; Kreis v. Railroad, 148 Mo. 321; Maxey v. Railroad, 113 Mo. 1.

R. L. & John Johnston for respondent.

Acting on the spur of the moment, the trial court gave the instruction asked by defendant, compelling plaintiff to take a nonsuit, with leave. But upon plaintiff's motion to set aside the nonsuit and for new trial, and after having the matter under advisement from the 15th to 27th day of July, the Court sustained said motion "on the ground that said instruction asked by defendant should not have been given." This action of the trial court, respondent contends was right and should be affirmed by this court; and, to sustain this contention, respondent cites the following cases: Humbird v. Railroad, 110 Mo. 76; Hilz v. Railroad, 101 Mo. 36; Gurley v. Railroad, 104 Mo. 211; Burger v. Railroad, 112 Mo. 238; Brown v. Railroad, 50 Mo. 461; McPheeters v. Railroad, 45 Mo. 22; Gabel v. Railroad, 60 Mo. 475; Schmidt v. Railroad, 119 Mo. 266; Minister v. Railroad, 53 Mo.App. 276; Powell v. Railroad, 59 Mo.App. 626. Warner was no trespasser on defendant's tracks; he had the lawful right to cross the tracks at that point, and there is not a syllable of evidence showing any contributory negligence on his part. All the circumstances detailed by the witnesses prove to a demonstration, that while driving across the tracks in the dark Warner's horse frightened, most likely by the noise and light of the approaching car, and plunged forward, bringing one wheel of the cart in collision with the iron trolley pole; the horse broke loose from the cart and ran, the shafts dropped to the ground and necessarily pitched Warner forward upon the track. The nature and place of his wounds show that when struck by the car, Warner was standing erect and in the act of stepping back off the track -- he had cleared the track but not far enough to escape the body of the car which is considerably wider than the track, but a delay of one second in the approach of that car would have saved his life. And it staggers belief, that defendant's motorman stood on the front platform of that car, with the track ahead of him lighted up for a distance of 125 feet, and necessarily shining upon Warner's cart in dangerous proximity to the track, itself a danger signal, jeopardizing the lives and limbs of himself and every passenger on his car, and yet made no attempt to check the speed or stop his car. It did not need the testimony of three of plaintiff's witnesses to satisfy us that the motorman was drunk as a lord, and reckless in the running of his car as a Comanche Indian, and that this utter disregard of the duty he owed the deceased at that usual and dangerous crossing was the direct cause of Warner's death.

OPINION

MARSHALL, J.

This is an action under the statute to recover five thousand dollars 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 seven and eight 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 seventy 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 employees 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 motorneer 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 motorneer 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.

I.

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. l. c. 378, 44 S.W. 257; Haven v. Railroad, 155 Mo. l. c. 216, and cas. cit.]

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 one thousand 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 seventy 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 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 a thousand 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 three hundred and fifty 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...