119 Mo. App. 358 | Mo. Ct. App. | 1906
Appellant was injured by the collision of a street car operated by respondent’s employees with a buggy in Avhich he was riding, and instituted this action to recover damages. The petition charges that the casualty was caused by the negligent operation of the car without specifying particularly the acts of negligence. The accident occurred in the city of Springfield, Missouri, on Commercial street, an east and west thoroughfare, at a point in the block between Boonville and Campbell streets, two north and south thoroughfares. We shall state the facts according to the testimony for the appellant. Fechley was riding in a one-horse buggy belonging to a man named Pierce and driven by the latter. The day was rainy and the curtains of the buggy were down. An election was in progress and Pierce had voted early in the morning at a polling place on the south side of the town. He was interested in a candidate for the office of sheriff and endeavored to induce appellant to vote for that candidate. Appellant was not acquainted with the man and alleged this fact as a reason for not voting for him. Pierce offered to take appellant to the north side of the city and malee him acquainted with the candidate, inviting Fechley to ride over in his buggy. Fechley ac
Under the instructions given a verdict was returned in favor of the company; from which judgment this appeal was taken, appellant contending that the rulings on the instructions Avere erroneous.
The testimony conclusively proves Pierce was guilty of negligence, and if this were an action by him there Avould be no difficulty in holding his negligence Avould prevent a recovery because it proximately contributed to the accident, unless the motorman, by ordinary care, could have stopped the car in time to prevent a. collision after the danger to the buggy ought to have been visible. Pierce’s own statement shoAvs he did not look for a car bound west on the north track until his horse Avas in the very act of stepping over the south rail of that track, Avhen plainly it was too late to avoid a collision by stopping the buggy. Unless the conditions are exceptional, the law requires a person about to drive on a car track to look and listen for cars before doing so. [Sanitary Dairy v. Transit Co., 98 Mo. App. 20, 71 S. W. 726; Killian v. Railroad, 86 Mo. App. 473; Damrill v. Railroad, 27 Mo. App. 202; Payne v. Railroad, 136 Mo. 562, 38 S. W. 308; Kelsey v. Railroad, 129 Mo. 362, 30 S. W. 339; Butts v. Railroad, 98 Mo. 272, 11 S. W. 754.] The precaution is required in order that the person approaching the track may re
Appellant himself must have been free from negligence proximately contributing to his injury or he is entitled to no damages, granting that Pierce’s fault does not preclude a recovery and that the motorman’s fault was a factor in bringing about the casualty. Few, if any, courts have held that an occupant of a vehicle may
In Hoag v. Railroad, 111 N. Y. 1991 it appeared that a husband and wife were sitting on the same seat in a vehicle driven by the husband and both were killed in a collision at a crossing. The court said the wife had no right, because her husband Avas driving, to omit any reasonable precaution required to see for herself that the crossing was safe. Our ruling is that a passenger under those circumstances, has a right to rely on the precaution taken by a driver, provided that precaution would strike a reasonable mind as adequate.
In Dean v. Railroad, 129 Pa. St., the facts were that Dean was struck by a. locomotive at a crossing, the negligence complained of being that no warning was given of the approach of the locomotive, by bell or whistle, though the train Avas running at a, high speed. Another man owned the team and wagon and was driving. The driver had failed to look for trains before going on the track, which negligence was not imputed to Dean. But Dean Avas familiar with the locality, had crossed the tracks frequently, kneAV a train was due about the time they reached the crossing, saAV the driver was approaching the track at a trot, without looking
In Township oh Crescent v. Anderson, 114 Pa. St., Mrs. Anderson was in a spring-wagon driven by her father. She was seated on the rear seat and her father on the front one. She had two children in her arms and a third one at her breast. Her father drove across a bridge that was plainly dangerous and, in ascending the bank, the seat on which Mrs. Anderson was sitting was jostled so that it threw her and the children into a raxdne. It was held that the danger which was obvious to her father, was obvious also to her, and as she made no request that another route be taken or objected to going over the bridge, «he Avas negligent herself and responsible for the consequences.
Other authorities of the same tenor and in point are: Griffith v. Railroad, 44 Fed. 574; Aurelius v. Railroad, 19 Ind. App. 584; Miller v. Railroad, 128 Ind. 97; Lake Shore Railroad v. Boyts, 16 Ind. App. 640.
On the testimony for appellant the case strikes us as one of concurrent negligence; for the buggy ha.d not gone more than from six to twelve feet after Pierce looked for a car, until the collision occurred. There is an inconsistency in appellant’s theory. He would have it that there was an appearance of danger of a collision which should have warned the motorman, as soon as the buggy Avas turned to go over the tracks and before Pierce looked for a cax>, but that appellant himself was not negligent in failing to guard against this apparent danger. That argument for appellant emphasizes and. makes clear his oxvn carelessness. The counsel in the case give several close calculations in support of their respective theories, and appellant’s attorneys endeavor to demonstrate that the motorman could have stopped the car before it reached the buggy, if he-had begun to get control of it when the horse turned
Complaint is made of the refusal of the court to instruct regarding the right of appellant to use the street, and that the degree of care the carmen were bound to exercise was to be determined with reference
The action was for common law negligence, no violation of a city ordinance being alleged. Hence the court committed no error in excluding an ordinance offered by appellant. The verdict was fully supported by the evidence, the case was left to the jury on the only possible ground of recovery by a sound instruction, and the judgment will be affirmed.