Buren v. St. Louis Transit Co., 104 Mo. App. 224

Buren v. St. Louis Transit Co.

104 Mo. App. 224 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above.) — The only error discussed in the brief of appellant’s counsel is the refusal of the court to grant the instructions offered by it at the close of all the evidence, that “under the law and the evidence plaintiff is not entitled to recover.”

Plaintiff offered substantial evidence tending to prove that the defendant was running its car over a travelled street on a dark night without any headlight or other light by which it could be seen, and without sounding the gong to notify persons, who might be on the track or so near thereto as to be struck by a passing car,- of its approach. If these facts be true, then the *231defendant’s motorman and conductor were guilty of gross negligence, and the only theory upon which the instructions in the nature of a demurrer to the evidence should have been given, was that all the evidence shows conclusively that plaintiff was guilty of negligence which directly contributed to his injury. The plaintiff had a right to drive on the defendant’s railway track, if in doing so he did not unnecessarily interfere with the operation of cars on the track. Oates v. Railway, 168 Mo. l. c. 544; Degel v. St. Louis Transit Co., 74 S. W. (Mo. App.) l. c. 157; Kolb v. St. Louis Transit Co., 76 S. W. (Mo. App.) 1053. Negligence, therefore, can not be imputed to him from the mere fact that he was driving on the track, nor do we think that a court can, as a matter of law, say that he was guilty of such negligence as to bar recovery from the fact that he drove on the track at a rapid speed, in the nighttime when it was very dark. It was the duty of the defendant to have its car so lighted as to be seen at a safe distance by persons using the street or to sound the gong, or give some warning of its approach to enable persons to keep out of its way. Noll v. St. Louis Transit Co., 73 S. W. 907; Klockenbrink v. Railway, 172 Mo. l. c. 689; Gratiot v. Railway, 116 Mo. l. c. 464; Dahlstrom v. Railway, 108 Mo. l. c. 536; Conrad Grocer Co. v. Railroad, 89 Mo. App. l. c. 397. Plaintiff had a right to rely on the performance of this duty by the railway company and to assume that if a car was approaching him from the north, it would have a headlight by which it could be seen, or the gong would be sounded' to give warning of its approach in time to allow him to move off the track in safety. We do not hold that the evidence does not tend to show that plaintiff was guilty of negligence that directly contributed to his injury — in fact we think the preponderance of the evidence is that way — but it is not all that way and when there is evidence pro and con on an issue of fact on trial, it is for the jury to pass upon its probative force, and when they have done so *232and the trial court has approved their finding by overruling the motion of the losing party to set aside the verdict, that issue of fact is not open to review by an appellate court.

The judgment is affirmed.

Reyburn and Goode, JJ., concur.