Williams v. East St. Louis Ry. Co.

• Decision Date: 08 December 1936
• Docket Number: No. 24023.,24023.
• Citation: 100 S.W.2d 51
• Parties: WILLIAMS v. EAST ST. LOUIS RY. CO.
• Court: Missouri Court of Appeals

100 S.W.2d 51

WILLIAMS v. EAST ST. LOUIS RY. CO.

No. 24023.

St. Louis Court of Appeals. Missouri.

December 8, 1936.

Rehearing Denied January 22, 1937.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be published in State Reports."

Action by Thomas Williams, administrator of the estate of Edna C. Donahue, deceased, against the East St. Louis Railway Company. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded.

Lashly, Lashly & Miller and Oliver J. Miller, all of St. Louis, for appellant.

Russell J. Horsefield and Richard Molloy, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by Thomas Williams, the administrator of the estate of Edna C. Donahue, deceased, to recover damages for the latter's wrongful death, which resulted from personal injuries sustained by her on October 7, 1933, when she was struck by a street car owned by defendant, East St. Louis Railway Company, and being operated by it over St. Clair avenue, near its intersection with Eighth street, in East St. Louis, Ill.

Upon a trial to a jury in the circuit court of the city of St. Louis, a verdict was returned in favor of plaintiff, and against defendant, in the sum of $6,500, of which, as a condition to the court's refusal of a new trial, plaintiff remitted the sum of $1,500. Judgment was thereupon entered for plaintiff for $5,000, and defendant's appeal to this court has followed in the usual course.

St. Clair avenue, which appears to be one of the principal thoroughfares of East St. Louis, runs generally east and west, and is intersected at intervals of a block apart by cross streets running north and south, among which are both Seventh street and Eighth street, the latter being one block to the east of the former. St. Clair avenue is about 60 feet in width from curb to curb, and has the conventional double street car tracks laid in the center of it, the track to the south being for eastbound cars, and that to the north for westbound cars. The distance between the rails of each track is 4 feet 9½ inches, while the distance from the outer rail of one track to the outer rail of the other is 14 feet 6 inches. This means, of course, that from either curb to the nearest rail is a distance of approximately 22 feet 9 inches.

The deceased was 64 years of age at the time of her death, and left surviving her her husband, John Donahue; three sons by a previous marriage, of whom Thomas Williams, the plaintiff here, is the oldest; and a grandson, Floyd Haverman, about 17 years of age, who made his home with his grandparents. It appears that Floyd was not employed at the time, but either was attending school, or else was just out of school. The surviving husband was first appointed administrator of his wife's estate in the probate court of St. Clair county, Ill., and upon his death on July 22, 1934, plaintiff was appointed administrator.

The accident occurred about 7:30 o'clock in the evening. Though it had rained earlier in the day, there was no rain falling at the time of the accident, and the evidence for plaintiff showed that the "rail was good," and the street dry. It was dark at that hour of the evening, and the street lights were burning as well as the lights on defendant's street car. The nearest street light was an arc light suspended from a pole at the southwest corner of the intersection, not far from the point where the accident occurred.

The deceased, who was on foot, was attempting to cross St. Clair avenue from north to south at a point about 30 feet west of the west curb line of Eighth street. Viewing the evidence most favorably to support plaintiff's right to recover for her death, it appears that when she was midway between the north curb of St. Clair avenue and the first rail of the westbound track, she looked to the west, which was the direction from which the eastbound car came which struck her. At that moment the car was about 150 feet away. Apparently the deceased was under no apprehension of danger from it, and continued to walk forward at an ordinary gait. By the time she reached the first rail of the eastbound track the car was only 50 feet away. About the time she stepped on the track she looked once more to the west. She then proceeded to cross the track, and was in fact practically across it when she was struck by the right front corner of the car, the force of the impact throwing her out to the side of the track upon the pavement, where she was picked up unconscious and taken to a hospital in which she died from the effects of her injuries on October 14, 1933, without ever having regained consciousness.

An eyewitness to the accident testified that when he first saw the street car leaving Seventh street it was running at an "ordinary" or "fairly uniform" rate of speed, but that at the point 50 feet from where it struck the deceased it "picked up" speed. Even the motorman admitted that he had "picked up" speed at a point which he put at a car's length, which would be 40 feet, from the point of the collision. Under his version of the facts he had been running anywhere from 8 to 15 miles an hour over the block from Seventh street to Eighth street, with his speed depending upon the interference he would encounter from time to time from automobile traffic moving over upon the street car track ahead of him.

The testimony was that at a speed of 10 miles an hour the car could have been stopped in a distance of 10 or 15 feet, and at a speed of 15 miles an hour in 20 feet. Both the motorman and the conductor testified that the brakes were not applied until momentarily before the collision, and that the car ran about 10 feet after striking the deceased. The motorman also admitted that with his headlight on he could see for a distance of 50 feet ahead of him for the entire width of the street. There was abundant evidence to show that no warning signal had come from the car before the happening of the collision.

In his petition plaintiff alleged the death of the deceased; the existence and identity of her surviving next of kin; and his own appointment as the administrator of her estate following the death of her husband to whom letters of administration had first been granted.

Plaintiff pleaded and relied upon two charges of negligence directly concurring to bring about the death of the deceased, the first, that defendant, through its agents, servants, and employees in charge of the car, after having first slowed the car down as it approached the deceased, had then increased its speed as it approached the point where she was struck; and the second, that defendant, through its agents, servants, and employees in charge of the car, had either seen, or in the exercise of ordinary care could have seen, the deceased in a place of imminent peril and danger of being struck by the car in time thereafter, by the exercise of ordinary care, and with the means and appliances at hand, and with safety to the occupants of the car, to have stopped the car or have slackened its speed and thus and thereby have avoided striking the deceased, but had negligently failed to do so.

There was then pleaded the Illinois wrongful death statute (Smith-Hurd Ill. Stats. c. 70, § 1 and § 2 and note, Cahill's 1925 Illinois Revised Statutes, c. 70, p. 1358, pars. 1 and 2), which creates a cause of action for wrongful death, and provides that, if commenced within one year after the death, the action may be maintained by and in the name of the personal representative of the deceased person, but for the benefit of the widow and next of kin, with it made the prerogative of the jury in every such action to give such damages, not exceeding the sum of $10,000, as they may deem to be fair and just compensation with reference to the pecuniary injuries resulting from such death to the widow and next of kin of such deceased person.

The answer was a general denial, immediately followed by a plea of contributory negligence on the part of the deceased, in that she had gone upon the track at a time when the approaching car was in close and dangerous proximity to her, when, if she had exercised ordinary care to have looked and listened for it, she could have discovered its approach in time to have avoided being struck by it.

Defendant then set up that under the law of Illinois, the plaintiff in an action for wrongful death is not entitled to recover if negligence on the part of the deceased directly caused or contributed to cause the injuries complained of; that the law of Illinois does not recognize the principle of secondary negligence or the humanitarian or last-chance doctrine; and that under the law of Illinois, the plaintiff in an action for wrongful death must prove affirmatively that the deceased, at the time of the alleged occurrence, was in the exercise of ordinary care for his own safety and was not guilty of contributory negligence.

The reply was a general denial, coupled with an averment that the joinder of issue upon the question of the contributory negligence of the deceased was not a matter of substantive law, but of procedure, which was to be governed and controlled by the law of our own state, though arising in the trial of an action based upon the wrongful death statute of Illinois.

Then followed the trial, the verdict, the judgment, and defendant's appeal to this court, all as has been heretofore indicated.

The first assignment of error has to do with the propriety of the submission of the...