Weber v. United Railways Company of St. Louis, a Corp.
| Decision Date | 03 June 1919 |
| Citation | 213 S.W. 535,201 Mo.App. 685 |
| Parties | GEORGE L. WEBER et al., Respondents, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, a corporation, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted May 6, 1919.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thos L. Anderson, Judge.
AFFIRMED.
Judgment affirmed.
T. E Francis, Chauncey H. Clark and Thomas Bond for appellant.
(1) There is no duty on the part of a motorman to keep a lookout for boys coasting over the street car tracks, unless he sees or knows that they are doing so. It appears from plaintiffs' own case that these boys came out of a side street, Camelia avenue, behind the motorman, and followed the car down the hill, and the uncontradicted testimony of the motorman is that he never saw any boys coasting on the hill on this occasion. Under these circumstances, he had no reason to anticipate, while running his car around this loop, that he would encounter boys coasting over the tracks on sleds and having no reason to anticipate any such situation, he was under no duty to keep a lookout therefor. Kiley v. Boston Elevated Ry. Co., 207 Mass. 542, 93 N.E. 632, 31 L. R. A. (N. S.) 1153; Siacik v. Railway Co., 48 A. 149; Hight v. American Bakery Co., 168 Mo.App. 431; Gallagher v. Crescent Ry. Co., 37 La. Ann. 288; Funk v. Electric Traction Co., 172 Pa. 559; Osborne v. Bay Street Ry. Co., 222 Mass. 427; Selmdea v. Worcester Consolidated St. Ry. Co., 223 Mass. 76; Boulhillier v. St. Ry. Co., 189 Mass. 537; Bier v. Camden, etc., Ry. Co., 52 A. (N. J.) 215. (2) Even if it could be held (which we deny) that the circumstances of this case imposed a duty upon the motorman to anticipate the presence of boys coasting across these tracks on sleds, and to keep a lookout for them, the uncontradicted evidence in the case shows that it was impossible to see deceased on account of the condition of the windows on the left side of the street car, due to the action of the elements. There is no charge in the petition that the defendant was negligent in not removing this condition, that is to say, in operating its street car with the windows obscured by ice and snow. The only specification of negligence in the petition and the only one on which the case was submitted to the jury is the last chance rule. This rule operates on conditions as they are, not as they ought to be, and only imposes upon the defendant the duty to take preventive measures which are open to a man of ordinary prudence under conditions as they exist. If, therefore, these conditions as they existed at the time deceased reached a place of danger, made it impossible for the motorman to see him and avoid injuring him, then there was no negligence on the part of the motorman in failing so to do. McGee v. Railroad, 214 Mo. 530, 541; Grear v. Harvey, 177 S.W. 780, 782; Same case, 182 S.W. 961. (3) According to plaintiffs' evidence, when the car started up to turn out of the loop onto the straight track, deceased was coasting on his sled about at the west curb line of Taylor avenue, seventy-three feet from the point of collision, going slowly, about as a man would walk. Plainly, at such a distance and under such circumstances, he was in no danger. And even had the motorman seen him there on Taylor avenue playing with his sled, there was nothing to indicate to the motorman that he was in any danger, and there was no negligence on the motorman's part in continuing the car around the loop. Cole v. Met. St. Ry. Co., 121 Mo.App. 605, 613; Keele v. Railroad, 258 Mo. 62, 79. (4) Reading the testimony in this case most favorably to the plaintiffs, it shows only an occasional use of this hill by boys for sledding. All the witnesses would say was that at times, when weather conditions were favorable, they had seen boys coasting on that hill, though it was only done furtively and occasionally, because the policeman on the beat would break up the practice every time he saw the boys engaged in it. It is not shown that boys had used this hill for coasting on more than one previous occasion that winter, and it is not shown that these boys had been coasting for any time on the day in question prior to the trip down the hill in which deceased was injured. It is apparent, therefore, that all that this evidence shows is an occasional use of the hill for coasting and not a regular or continuous or notorious use, of such a character as to amount to a custom, or to impose any duty upon those in charge of street cars in reference thereto. S.E. McMiens v. United Railways, 202 S.W. 1082; Parker v. Railway Co., 180 Mo.App. 185; Shields v. Railway, 87 Mo.App. 637.
Earl M. Pirkey for respondents.
(1) It is the duty of the motorman to keep a lookout not merely for persons on the tracks, but also for those moving towards it. Moore v. St. Louis Transit Co., 194 Mo. 12. (2) It is the duty of the motorman to be on the lookout for children on sleds approaching the track. Saulan v. St. Joseph Railway Co., 199 S.W. 714; Urbas v. Railway, 113 Minn. 312 Strutzel v. St. Paul City Ry. Co., 47 Minn. 543.
Plaintiffs, husband and wife, parents of their infant son, George E. Weber, a minor, living with his parents, bring this action to recover damages for his death.
It is charged that on December 20, 1914, while the boy was riding on a sled on Lee Avenue, at or near Taylor Avenue, in the city of St. Louis, and while the sled with the boy on it was near the track of defendant's car line on Lee Avenue, at or near Taylor Avenue, the defendant and its motorman in charge of its car negligently caused and permitted the car to move directly in front of the sled so that the sled with the boy on it collided with the street car, throwing the boy under the front of the rear wheels, whereby his arm was broken, right hand and arm badly mangled, torn and bruised, and the boy caused to sustain great nervous shock and injuries, from the effect of which he died on January 10, 1915. It is charged that at the time the boy was injured and for a long space of time next prior thereto, children had been frequently riding on sleds on Lee Avenue near Taylor, to the knowledge of defendant.
What is known as the "Vigilant Watch Ordinance" of the city of St. Louis was pleaded, that providing, in substance, that persons in charge of street cars "shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible." This is section 2380, Ordinance 26,653, Rombauer's Ed. 1912; section 1053, Fourth Par., Ordinance 30,013, p. 1094 Wagner's Ed. 1914. It is charged that defendant's motorman, in violation or disregard of this ordinance, negligently failed to stop the car in the shortest time and space possible under the circumstances with the means at his command and consistent with the safety of passengers on his car, when he saw, or by the exercise of ordinary care, would have seen the boy on the sled approaching the track and in a position of danger from the car, and when he knew, or by the exercise of ordinary care, would have known, of the danger of the boy being injured. The damage to plaintiffs is placed at $ 10,000.
The answer was a general denial.
There was a verdict for plaintiffs and against defendant in the sum of $ 4000. Judgment following, defendant has duly appealed.
The defendant company maintains a double track along Lee Avenue in the city of St. Louis, upon which it operates its cars. Lee Avenue, seventy feet wide at the place of the accident, runs east and west. Taylor Avenue, sixty feet wide, runs north and south. The first street east of Taylor Avenue, which runs into Lee, is Camelia Avenue. East of Camelia and crossing Lee is Newstead Avenue. Leaving Newstead Avenue on Lee Avenue, both sets of tracks run west along Lee Avenue, crossing Camelia, until they reach the east line of Taylor. One track, the north one, curves from where it reaches the east line of Taylor, runs north and northwesterly on Taylor, making a curve out of Taylor into City Block 4414E, then into that block on a curve northerly and westerly, then south through the block to the south line of the block on Lee, then curving to the southeast on Lee, runs east on that avenue and across Taylor, then east along Lee to Camelia and on to Newstead and beyond, forming the south tracks. From the top of the loop to where the track straightens on Lee is about 170 feet. Cars coming from the east run along the north track around the loop and through the City Block and then curve into Lee Avenue, thence east along Lee to Camelia Avenue, to Newstead and beyond. The car in question had come from the east and around the north end of the loop and going south through the City Block, stopped about fifty feet north of Lee. It then started up slowly, going "as fast as a man can walk, just about," said one McGaughey, a witness for plaintiff. When it had turned into Lee avenue and was running west and was about seventeen or eighteen feet south of the south line of City Block 4414E, and about that distance north of the center of Lee, the accident occurred.
The City Block is unimproved, apparently used as a dumping ground. Lee Avenue is paved and improved with sidewalks curbs and asphalt roadway to where it enters Taylor from the east and from then on, running west along Lee Avenue, it is not paved but is rough. The fall of Lee Avenue from Camelia to Taylor is about ten or twelve feet, the grade ending on Lee at the east side of Taylor; from there on and along Lee, Lee Avenue is level. At the time, according to the testimony of a witness for defen...
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