Ziegler v. United Rys. Co.

• Citation: 220 S.W. 1016
• Decision Date: 06 April 1920
• Docket Number: No. 15582.,15582.
• Parties: ZIEGLER v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

220 S.W. 1016

ZIEGLER v. UNITED RYS. CO. OF ST. LOUIS.

No. 15582.

St. Louis Court of Appeals. Missouri.

April 6, 1920.

Rehearing Denied April 29, 1920.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

"Not to be officially published."

Action by Helen F. Ziegler against the United Railways Company of St. Louis. Judgment for plaintiff, a new trial was granted, and plaintiff appeals. Reversed and remanded, with directions.

Igoe & Carroll, of St. Louis, for appellant.

Charles W. Bates, T. E. Francis, and Chauncey H. Clarke, all of St. Louis, for respondent.

NIPPER, C.

This is an action for damages, brought by the plaintiff against the defendant, in the circuit court of the city of St. Louis. The trial in the court below resulted in a verdict and judgment for plaintiff for $3,750. At the close of the plaintiff's case defendant offered a demurrer, which was by the court overruled. The defendant introduced no testimony. After the verdict and judgment, as above stated, defendant filed its motion for new trial, which was by the court sustained. From this action in granting defendant a new trial, plaintiff appealed to this court.

Plaintiff, in her petition, alleges a violation of a speed ordinance in the city of St. Louis, which limits the speed of street cars in this Particular district to 10 miles an hour, and also negligence under the "last chance" doctrine and the "vigilant watch" ordinance of said city. Defendant's answer was a general denial.

The facts are, as shown by the record, that on June 26, 1914, at about 8 o'clock p. m., the plaintiff was riding in the rear seat of a Ford automobile, which was owned and operated at the time by her husband. They were traveling on Washington avenue, west of Grand avenue, in the city of St. Louis, in an easterly direction. When they reached the intersection of Grand and Washington avenues, on the west side of Grand avenue, the husband of plaintiff stopped the automobile near the south curb of Washington avenue, a few feet west of Grand avenue, which would be near the southwest corner of Grand and Washington avenues. There is a double line of street car tracks on Grand avenue, and the automobile was stopped at this point, to permit south-bound car to pass. One James Meacher was riding in the front seat with the driver. After the south-bound street car had passed, the automobile was started, and plaintiff looked and saw nothing coming. Plaintiff testified that, after the south-bound car had passed, it was down past the Humboldt Building before the automobile started. This building is located at the southwest corner of Grand and Washington avenues. The testimony would indicate that at the time plaintiff looked, the south-bound car was a distance of about 120 feet. At that time, she looked and "didn't see anything coming." The driver then proceeded, as stated, in a northeasterly direction. Both Grand and Washington avenues, at the scene of this accident, are each about 40 feet wide. When plaintiff had reached a point near the middle of Grand avenue, and directly east of the north curb of Washington avenue, a northbound street car struck the rear end of said automobile, resulting in the injuries and damages complained of.

Meacher, who was riding in the front seat with plaintiff's husband, testified that when the automobile started, after it had stopped to permit the south-bound car to pass, the rear end of the south-bound car was about south of the entrance to the Humboldt Building, or about 55 feet south. The ground is nearly level at this place. At the time of and immediately prior to the accident, the northbound street car, the one which struck the automobile, was traveling at 20 or 22 miles per hour.

Plaintiff did not see the car until it was within 12 or 15 feet of her, and then she saw the car was going to hit, and screamed. The car in question was loaded with members of the First Regiment of the National Guard, who had boarded the car in front of the Armory, between Market street and Clark avenue, on Grand avenue.

Sigmund Rose, witness for plaintiff, testified that he was on this car, sitting in the front on the sand box; that after they left Olive street, a street running east and west, and about 400 feet south of where the accident occurred, the motorman turned "the power onto full speed," and left it that way "until he just about hit that automobile," and that he never saw the motorman make any effort to stop the street car until it was within about 15 feet of the automobile; that he was looking in a northeasterly direction; that the first thing that attracted his attention was the motorman throwing the power off. His testimony with reference to any obstruction was as follows:

"The Court: Q. Did you notice any obstruction, such as a large moving van, or anything of that kind to prevent either of the parties— that is, the driver of the automobile or the motorman of the car—seeing each other if they had looked; was there any obstruction in the way to prevent them from seeing each other? A. There was a south-bound car that had just left Washington avenue before we got there.

"Q. Just before the accident? A. There was no obstruction.

"Q. What was there to prevent the driver of the automobile seeing the car coming? A. There was a clear track each way."

At the point where this accident occurred, Washington avenue does not proceed or continue directly across Grand avenue, but there is what is referred to in defendant's brief as a "jog," which perhaps accounted for the driver of the automobile attempting to cross Grand avenue in a northeasterly direction.

Defendant's motion for new trial was sustained on the ground that the demurrer to the evidence should have been granted, that plaintiff's negligence was the proximate cause of her injury, and that she was guilty of contributory negligence as a matter of law.

It is well settled in this state that the negligence of the driver of the automobile cannot be attributed to the plaintiff, who is riding in the rear seat of the machine. As was said in Ebert v. Street Railway Co., 174 Mo. App. 45, loc. cit. 49, 160 S. W. 34, 36:

"If such person has no ground to suspect incompetency or to anticipate negligence on the part of the driver, and the impending danger was so sudden or of such a character as not to require or permit any act on the part of such person...