Ziegelmeier v. Railway Co.

• Decision Date: 01 July 1932
• Docket Number: No. 30039.,30039.
• Citation: 51 S.W.2d 1027
• Parties: FRANK ZIEGELMEIER, JR., v. EAST ST. LOUIS AND SUBURBAN RAILWAY COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

51 S.W.2d 1027

FRANK ZIEGELMEIER, JR., v. EAST ST. LOUIS AND SUBURBAN RAILWAY COMPANY, a Corporation, Appellant.

No. 30039.

Supreme Court of Missouri, Division 2.

July 1, 1932.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

REVERSED AND REMANDED.

Holland, Rutledge & Lashly, Holland, Lashly & Donnell, Judson, Green, Henry & Remmers and Ernest A. Green for appellant.

(1) This rule has been applied in Illinois to a passenger in an automobile, or other vehicle, who makes no effort to stop the automobile or vehicle when approaching a dangerous crossing. Illinois courts hold such passenger guilty of contributory negligence. Grifenhan v. Chicago Ry. Co., 299 Ill. 590; Opp v. Pryor, 294 Ill. 547; Flynn v. Chicago Street Ry. Co., 250 Ill. 460; Munns v. Chicago Street Ry. Co., 235 Ill. App. 160; Specht v. Chicago City Ry. Co., 233 Ill. App. 384; Odett v. Chicago Ry. Co., 166 Ill. App. 270; C. &. N.W. Ry. Co. v. Reilly, 40 Ill. 416, 418; Bushman v. Calumet & Chicago Ry. Co., 214 Ill. App. 433; Grifenhan v. Chicago Ry. Co., 299 Ill. 590; Opp v. Pryor, 294 Ill. 547; Munns v. Chicago City Ry. Co., 235 Ill. App. 160; Specht v. Chicago Ry. Co., 233 Ill. App. 384; Odett v. Chicago Ry. Co., 166 Ill. App. 270. (2) Even under the humanitarian rule, as recognized and applied by the Appellate Courts of Missouri, it would have been error to submit the case to the jury on the theory that the motorman of defendant might have stopped the street car after he knew that the automobile of plaintiff was in a position of peril, because there is no evidence in the record to support that proposition. On account of the darkness and fog the motorman could not see that the automobile was not slowing down for the crossing, and he did not know, and could not know, that the driver did not intend to stop until the automobile struck the street car, because no horn was sounded or other signal given by the occupants of the auto that he could see or hear. Under these circumstances it would be erroneous, even under Missouri law, to submit to the jury plaintiff's right to recover under the humanitarian rule. Bibb v. Grady, 231 S.W. 1020; Disano v. Hall, 14 S.W. (2d) 483; Trussell v. Waight, 285 S.W. 114; Banks v. Morris & Co., 302 Mo. 254; Huckleberry v. Mo. Pac. Ry. Co., 26 S.W. (2d) 980.

Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) In passing upon a demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of the plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn from the entire record, and the court cannot draw inferences in favor of defendant to counter-balance or overthrow presumptions or inferences in favor of plaintiff. In this connection the evidence favoring defendant serves no office. Troll v. Drayage Co., 254 Mo. 337; Buesching v. Gaslight Co., 73 Mo. 219; Stauffer v. Met. St. Ry. Co., 243 Mo. 305. (2) The jury had the undoubted right to believe all of the testimony of any witness, or none of it, or to accept it in part or reject it in part, as they found the same to be true or false, when considered in relation to the other testimony and the facts and circumstances in the case. Anderson v. Davis, 314 Mo. 515; Gould v. Railroad Co., 315 Mo. 723. (3) The evidence for respondent showed that the motorman of appellant's car was guilty of negligence in operating the car at the rate of thirty miles per hour, and in failing to stop the car before entering and crossing Eighth Street. These acts constituted violations of the ordinances of East St. Louis and were negligence per se. Smith v. Mederacke, 302 Mo. 538; Goben v. Railroad Co. (Mo. App.), 255 S.W. 327; Harrington v. Dunham 273 Mo. 414; Harrington v. K.C. Rys. Co. (Mo. App.), 217 S.W. 879; Stussy v. K.C. Rys. Co. (Mo. App.), 228 S.W. 531; Strauchon v. Met. St. Ry. Co., 232 Mo. 587. (4) The evidence further showed negligence on the part of appellant's motorman in failing to make any effort to slow down or stop the car, and thus avert the collision, when he saw or could have seen the automobile approaching the track, and that a collision was imminent. Ellis v. Met. St. Ry. Co., 234 Mo. 657; Lyons v. Met. St. Ry. Co., 253 Mo. 143; Brown v. Illinois Terminal Ry. Co., 319 Ill. 326, 150 N.E. 242, same case, 237 Ill. App. 145; Pendleton v. Chicago City Ry. Co., 120 Ill. App. 407; L.S. & M.S. Ry. Co. v. Bodemer, 139 Ill. 606; Wabash Railroad Co. v. Speer, 156 Ill. 251; C. & N.W. Railroad Co. v. Smedley, 65 Ill. App. 647; Bozinich v. Chicago Ry. Co., 187 Ill. App. 8; Jeneary v. C. & I. Trac. Co., 306 Ill. 392; Lund v. Osborne, 200 Ill. App. 457; Giles v. Peoria Railroad Co., 153 Ill. App. 625.

WESTHUES, C.

Plaintiff filed this suit in the Circuit Court of the City of St. Louis, Missouri, to recover damages, resulting from personal injuries, alleged to have been sustained in a collision of an automobile in which plaintiff was riding and a street car, owned and operated by defendant company. Plaintiff received a verdict for thirty-five thousand dollars ($35,000). The trial court reduced this to twenty thousand dollars ($20,000). From this judgment defendant appealed.

From the record we learn that, at a previous trial, the jury failed to return a verdict. The collision in which plaintiff was injured occurred at about three o'clock A.M., March 18, 1924, at the intersection of Eighth Street and Illinois Avenue, East St. Louis, Illinois. Eighth Street runs north and south and is thirty-six feet and six inches wide, from curb line to curb line. Illinois Avenue is forty-seven feet wide and runs east and west. The defendant maintained a double track on Illinois Avenue, for the purpose of operating its street cars. There were boulevard stop signs on each side of Illinois Avenue on equal lines with the property on the east and west sides of Eighth Street. The street car, that figured in this incident, was traveling in a westerly direction, and the car in which plaintiff was riding was traveling in a southerly direction on Eighth Street.

The evidence conclusively reveals that the automobile in which plaintiff was riding ran into and struck defendant's car a few feet back of the door or entrance to the front vestibule, while the car was moving across the intersection of Eighth Street. The front end of the street car, at the time of the collision, was about parallel with the west curb line of Eighth Street.

[1] Appellant assigns error, on the part of the trial court, in giving Instruction 1 in which instruction the case was submitted to the jury, under what is known as the humanitarian doctrine. The evidence on part of plaintiff, as testified to by the occupants of the car, who were present at the trial, was that the motorman, operating the street car, could have seen and did see the car in which plaintiff was riding, when the car was at the north building line of Illinois Avenue, and approaching the car tracks at a speed of about ten or twelve miles per hour. The street car, according to plaintiff's contention, was, at this time, about seventy-two feet from the point of collision. Plaintiff and the occupants of the car testified that they saw the street car, at this time, and could have stopped their car within about fifteen feet. Plaintiff introduced evidence, which is sharply contradicted by defendant's evidence, that the street car failed to make the boulevard stop, and was running at about thirty miles per hour in violation of a city ordinance. There is also testimony to the effect that it was a foggy, dark night. There is no dispute about the fact that the lights, on the automobile in which plaintiff was riding, were lighted; that the street car had a headlight and also that the interior of the street car was lighted.

It is definitely settled in Missouri that in order to make out a case, under the humanitarian rule, a plaintiff must show, as was said in Banks v. Morris & Co., 302 Mo. l.c. 267, 257 S.W. 482, that:

"`(1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof plaintiff was injured.' Evidence tending to prove these facts makes a prima-facie case for plaintiff."

[2] The evidence in this case wholly failed to show that plaintiff was in a position of peril, at any time prior to the collision. In so holding, we take as true the evidence, on behalf of plaintiff, that the automobile, in which plaintiff was riding, was traveling toward the car tracks at a rate of speed not exceeding twelve miles per hour; that when it reached the north property line of Illinois Avenue, thirty-two feet from the north rail of the car tracks, the street car was seventy-two feet from the point of collision and traveling thirty miles per hour; that, at that time, the motorman, operating the street car, saw the car in which plaintiff was riding, and the occupants of the car saw the street car. The automobile, at the rate of speed plaintiff says it was traveling, could have easily made a right-hand turn...