Wilson v. Wells

• Decision Date: 01 February 1929
• Docket Number: No. 27192.,27192.
• Citation: 13 S.W.2d 541
• Parties: WILLIAM M. WILSON, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS.
• Court: Missouri Supreme Court

13 S.W.2d 541

WILLIAM M. WILSON, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS.

No. 27192.

Supreme Court of Missouri, Division No. 1.

February 1, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED AND REMANDED.

L.L. Boehmen and A.L. Hirsch for appellant.

(1) Plaintiff was not guilty of negligence as a matter of law. Compton v. Construction Co., 315 Mo. 1068; Burke v. Pappas, 316 Mo. 1235; Peppers v. Railroad, 316 Mo. 1104; Sugarwater v. Fleming, 316 Mo. 742. (2) Plaintiff had a right to rely on the prevailing custom in the operation of the cars, since he testified that for about two years just preceding the accident he had almost nightly at about the same time repeated the performance of getting off of the northbound Jefferson Avenue car and boarding the Delmar car going west. Sugarwater v. Fleming, supra; Gould v. C.B. & Q. Railroad, 315 Mo. 713; Peppers v. Railroad, supra; Banks v. Morris & Co., 302 Mo. 269. (3) The motorman violated the humanitarian doctrine by not keeping his car under control as he either saw or should have seen plaintiff walking rapidly toward the track and looking at the westbound car, since he could have discovered those facts and conditions at the time his car started forward before his car had gained any appreciable speed, and after it became improbable that he could stop the car before striking him he should have sounded the gong. Chawkley v. Railroad (Mo.), 297 S.W. 24; Zumwalt v. C. & A. Railroad (Mo.), 266 S.W. 717; Burke v. Pappas, supra; Sugarwater v. Fleming, supra. (4) For the purpose of passing upon the propriety of the ruling on the instruction in the nature of a demurrer to the evidence plaintiff's evidence and all reasonable inferences therefrom must be taken as true. Peppers v. Railroad, supra; Zumwalt v. Railroad, supra; Chawkley v. Wabash Ry. Co., supra. (5) As to the speed of the car when it struck plaintiff, since a reasonable inference from some of the evidence indicated that it was going less than twelve miles per hour, this court, in passing on the demurrer to the evidence, will take as the actual speed that speed indicated by any positive testimony, or by any reasonable inference from any of the testimony, which is most favorable to the plaintiff. Maginis v. Railroad, 268 Mo. 667; Zumwalt v. Railroad, supra. (6) The motorman was negligent in violating the Vigilant Watch Ordinance, which was introduced in evidence. (7) The motorman was negligent in violating the ordinance requiring him not to exceed the speed of three miles per hour under the conditions shown to have existed. (8) The motorman was negligent in running his car at an excessive rate of speed across a busy street with a double street railway track on it and not keeping his car under control. Maginis v. Railroad, supra.

T.E. Francis and B.G. Carpenter for respondent.

Under the petition and proof, plaintiff was not entitled to go to the jury and the trial court properly sustained defendant's demurrer to the evidence. (1) After having seen the eastbound Olive Street car standing at the west side of Jefferson Avenue plaintiff walked for a distance of approximately thirty feet and went upon the eastbound tracks without again looking to the west, although he heard the noise of a street car in motion. Such conduct amounts to contributory negligence as a matter of law and debars plaintiff from recovery under all primary assignments of negligence charged against defendant. Goggins v. Wells, 273 S.W. 1107; Hoodenpyle v. Wells, 291 S.W. 520; Epstein v. Wells, 284 S.W. 845; Osborn v. Railroad, 179 Mo. App. 257; Gubernick v. United Railways, 217 S.W. 33; Mockowik v. Railroad, 196 Mo. 570; Kelsey v. Railroad, 129 Mo. 374; Huggart v. Railroad, 134 Mo. 679; Boring v. Ry. Co., 194 Mo. 548. (2) Plaintiff's petition did not charge nor did his proof establish a case under the last-chance doctrine. (a) The petition does not allege "failure to warn" as "last-chance" negligence. (b) The petition does not allege that plaintiff was at any time in a position of peril. (c) The evidence did not show the distance intervening between the street car and plaintiff when the latter entered the danger zone. In this case the tracks themselves were a warning of danger to plaintiff and he was not in a position of peril until he took the last step or two placing him in the path of the street car. (d) Where the injured party, as here, is sui juris and negligently moves from a place of safety to a place of danger so close to an approaching street car that by ordinary care his injury cannot be averted, then there is no room for the play of the last-chance doctrine, but, on the contrary, the doctrine of concurrent negligence is left to operate as a defense in full vigor and rigor. Banks v. Morris, 302 Mo. 254: State ex rel. v. Trimble, 300 Mo. 106; Degonia v. Railroad, 224 Mo. 586; Boring v. Railway, 194 Mo. 548; State ex rel. v. Reynolds, 289 Mo. 479; Boyd v. Ry. Co., 105 Mo. 371; Keele v. Railroad, 258 Mo. 79; Beal v. Frisco, 256 S.W. 733; Watson v. Street Ry. Co., 133 Mo. 250; Hawkins v. Railroad, 135 Mo. App. 524; McGee v. Transit Co., 214 Mo. 520; Mockowik v. Railroad, 196 Mo. 550.

LINDSAY, C.

This is an action for damages for injuries suffered by the plaintiff through being struck by a street car operated by defendant, while plaintiff was attempting to walk northward across Olive Street from the southeast corner to the northeast corner of the junction of Olive Street and Jefferson Avenue, in the city of St. Louis. There are double tracks on both streets. At the close of the plaintiff's case the court gave the peremptory instruction offered by defendant, and later overruled plaintiff's motion to set aside the involuntary nonsuit taken by plaintiff and this appeal followed. The record shows this was the second trial, the plaintiff having taken a nonsuit upon the first trial.

The outstanding question in the case is whether plaintiff was guilty of contributory negligence as a matter of law. Another question presented is whether the plaintiff by his petition pleaded a violation of the humanitarian doctrine on the part of defendant, as well also the question whether, under the evidence, plaintiff made a case of violation of the humanitarian rule. For the reason that this question is raised as to the sufficiency of the petition, and also because the petition pleads facts in unusual detail, we set out all the allegations of the petition containing the charges of negligence.

"Plaintiff for cause of action against defendant states that on, to-wit, the 9th day of December, 1921, plaintiff after alighting from the front end of a Jefferson Avenue car bound north, and standing at the regular stopping place on the south side of Olive Street, walked toward the southeast corner of Jefferson Avenue and Olive Street; both of said streets being public thoroughfares in the city of St. Louis, Missouri, looked in a westerly direction and saw an eastbound Olive Street car owned and operated by defendant, as receiver, standing on the eastbound track at the regular stopping place on the west side of Jefferson Avenue, at Olive Street, and he proceeded rapidly toward a westbound Olive Street car which was standing at the regular stopping place at the east side of Jefferson Avenue on Olive Street, which car he intended to board, if it was a Delmar car, as a passenger for hire, for which he legally held a proper transfer obtained on said Jefferson Avenue car; that from the point from which he saw the eastbound Olive Street car standing at the west side of Jefferson Avenue to the curb of the east sidewalk of Jefferson Avenue is but about six feet, and from the south rail of said eastbound Olive Street car track to the curb of the south sidewalk of Olive Street is about ten and three-quarters feet; that he did not see the said eastbound street car start, and did not know that it was in motion, and did not again see the said eastbound Olive Street car from the time he saw it stationary at said regular stopping place on the west side of Jefferson Avenue until he was in the path of said eastbound Olive Street car when it was too late for him to escape from being struck by said car. Plaintiff states that after he had seen the eastbound Olive Street car standing at the west side of Jefferson Avenue as aforesaid, he thought he had ample time to cross to said place to board a Delmar car bound west, and would have had ample time had the motorman of said eastbound Olive car obeyed the laws and the ordinances, which ordinances are hereinafter set out, and he directed his attention to the westbound Olive Street car which he intended to board as aforesaid, by passing past the front end of it and boarding it at the receiving end, if it were a Delmar car; he traveled on the east crossing northwardly on Olive Street, and could have gotten out of the path of the said eastbound Olive Street car had it not started up suddenly and rapidly in excess of the lawful rate of speed and in violation of said ordinances, and without giving any warning of its approach.

"That plaintiff proceeded to cross said Olive Street walking on the east crossing as aforesaid, but just as he was able to determine that the car standing on the westbound track of Olive Street as aforesaid was not a Delmar car, he slackened his speed, and within about a second he was struck, without negligence on his part, by said eastbound Olive Street car.

"That neither the motorman of said eastbound Olive Street car, who was in charge of the operating apparatus, nor any other person, sounded, rang or caused to be sounded or rung, a warning gong or bell, or gave any warning of the approach of said car, and plaintiff was not cognizant of the danger which threatened him.

"That the said motorman saw plaintiff after he left the south side of Olive Street on said crossing, going in a northerly direction on said crossing, or could, by the...