Woodis v. United Railways Company of St. Louis

• Decision Date: 07 May 1918
• Citation: 203 S.W. 489,199 Mo.App. 348
• Parties: WILLIAM A. WOODIS, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent
• Court: Missouri Court of Appeals

203 S.W. 489

199 Mo.App. 348

WILLIAM A. WOODIS, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Respondent

Court of Appeals of Missouri, St. Louis

May 7, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon. J Hugo Grimm, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

John J O'Connor for appellant.

(1) When those operating a street car sees or by the exercise of ordinary care could see a person on the track in front of said car, in a position of danger, it becomes the duty of the operator to stop the car and avoid striking such person where the same can be done by the exercise of ordinary care with safety to the car and those on it, after the operator sees the person's danger of being hit. And a failure under such circumstances, to so stop the car, renders the owner liable for any injury done to such person if he be struck by such car. Quinley v. Springfield Traction Co., 180 Mo.App. 287; Zander v. St. Louis Transit Co., 206 Mo. 445; Felver v. Cent. Elec. R. R. Co., 216 Mo. 203; Feeney v. Railroad Co., 123 Mo.App. 420; Cole v. Metropolitan St. Ry. Co., 133 Mo.App. 440; Prenderville v. St. Louis Transit Co., 128 Mo.App. 595; Taylor v. Met. Street Ry., 256 Mo. 214; McGinnis v. Railroad, 268 Mo. 669. (2) Where the cause rests on the humanitarian doctrine, as in this cause, contributory negligence is eliminated from the cause, because the negligence of the plaintiff, if any, is not the proximate cause of the injury, the other fellow had the last chance to avoid the injury and neglected to embrace it. Johnson v. St. Joseph Ter. R. R. Co., 203 Mo. 381; Taylor v. Met. Street Ry., 256 Mo. 214. (3) It is only when the person goes on the track so close to an approaching car that the operator cannot, with the means at hand, stop the car before striking such person, that the humanitarian rule does not apply. And this was all that was held in the case of Reeves v. Kansas City & Chicago Railway Co. 251 Mo. 169.

T. E. Francis and S. P. McChesney for respondent.

The trial court properly sustained the defendant's demurrer to the evidence. (1) Appellant cannot recover on a failure to warn, because having seen the car approaching, a failure to sound the gong could not have been the proximate cause of the collision. Peterson v. Railroad, 192 S.W. 938, 940. (2) Appellant cannot recover under the humanitarian rule. (a) Because he has not pleaded nor proved said rule. Knapp v. Dunham, 195 S.W. 1062. (b) Because said rule does not apply where one sees a car approaching and goes on the track and is struck. Kinlen v. Railroad, 216 Mo. 145; Pope v. Railroad, 242 Mo. 232; Reeves v. Railroad, 251 Mo. 169. (c) Because said rule does not apply, because the respondent's motorman had the right to presume that appellant would step off the track before the car got to him. Pope v. Railroad, 242 Mo. 232.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

This is an action to recover damages for personal injuries. At the close of plaintiff's case the court, at the instance of the defendant, instructed the jury that under the law and the evidence plaintiff could not recover and their verdict must be for the defendant; whereupon plaintiff took an involuntary nonsuit with leave to set same aside. Plaintiff filed his motion to set aside the judgment of nonsuit and grant a new trial, which was overruled by the court, and plaintiff brings this appeal.

In the city of St. Louis, Missouri, Mississippi avenue runs north and south, and Hickory street runs east and west. On Mississippi avenue where it intersects Hickory street there are double lines of track belonging to the defendant company which operates its electric street cars thereon. There is quite a steep grade on Mississippi avenue from Park avenue, which is two blocks west of Hickory street, to Chouteau avenue which is two blocks south of Hickory street. The plaintiff had formerly been employed by the defendant as a conductor of a street car which passed over these streets.

The record discloses that on the 6th day of February, 1914, at about six o'clock in the evening, when by reason of the darkness the street lamps had been lighted, the plaintiff stood on the curb on the southeast corner of Hickory street and Mississippi avenue intending to cross over to the northwest corner of said streets at which corner he intended to board a southbound car. Plaintiff while so standing on the curb looked south up Mississippi avenue and saw a car of the defendant company approaching some distance away, and, in the belief that he had plenty of time to get across the tracks to the opposite corner started from the curb and walked rapidly in "a jog" or "dog-trot" west to the east rail of the northbound track on the Mississippi avenue and proceeded along said rail. In view of the testimony most favorable to plaintiff the car was about 170 feet away from him when he went upon the track; and Hickory street is said to be sixty feet in width. When plaintiff was within three to five feet of the north line of Hickory street he was struck by the front end of the car and sustained injuries.

Plaintiff did not turn to look at the car after he left the curb. The testimony adduced is to the effect that the motorman did not ring the bell or give any warning prior to the time the car struck the plaintiff and that the car traveled 100 feet from the point where plaintiff was struck before stopping. The car was running ten to twelve miles per hour and according to a witness for plaintiff could have been stopped within 40 feet under the conditions as detailed in the case.

The learned trial judge at the close of plaintiff's case when defendant offered its demurrer to the evidence, overruled same; but while the first witness adduced by defendant was upon the stand the court became convinced that it had erred in so overruling defendant's demurrer and thereupon reversed its said ruling and sustained the demurrer. The plaintiff then took a nonsuit with leave to set same aside.

Defendant asserts that the action of the learned trial judge was correct in that plaintiff's case falls within the rule as laid down in Peterson v. United Rys. Co. (Mo.), 192 S.W. 938; in which our supreme court, speaking through GRAVES, J., says: "The purpose of sounding a gong or ringing a bell is to give notice of the approaching car. If the party has this notice, without the sounding of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be made the predicate for recovery. Under such circumstances the sounding of a gong or the ringing of a bell could not impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person. But be this as it may, it is clear that the submission of this ground of negligence to the jury in this case was error, for which the judgment must be reversed and the cause remanded." In the Peterson case, however, the plaintiff was sitting in an automobile, the engine of which had ceased to work and the automobile came to a stop on the tracks of the street car company. The plaintiff saw the car approaching at the moment the automobile stopped upon the track, the car being then distant about 600 feet running down grade at a speed of twenty to twenty-five miles per hour, and plaintiff, in the Peterson case, saw the car and its movements up until about the time it struck the automobile, and, according to plaintiff's own testimony the car was coming so fast he did not know what to do, with the result that he remained in the automobile and suffered injuries when the car ran into it. It is therefore obvious that in the Pete...