Fellenz v. St. Louis & Suburban Railway Co.

106 Mo. App. 154 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts). — It is strenuously contended hy defendant that plaintiff’s own evidence, as well as the whole of the evidence, shows conclusively that plaintiff was guilty of negligence that directly contributed to his injury and for this reason should have been nonsuited. Plaintiff testified that he did not look for a car until he was on the track in a position of peril from which it was impossible for him to extricate himself. He stated that he did not hear the car, but he nowhere stated that he listened for one. As an excuse for not looking, he testified that it would have been no use to look for the reason he could not have seen the car on account of obstructions caused by trees and weeds. The trees were few in number, not large, being peach trees, and were in defendant’s lot from twenty-three to twenty-four feet from the track. The highest of the weeds did not exceed eight or nine feet, and many of them were not of that height. Plaintiff was standing in his wagon and, according to his own evidence, his eyes were at least nine feet above the ground. The top of the car was eleven feet above the ground, the top end of the trolley pole seventeen to eighteen feet above the ground; the ground, from three to four hundred yards north of Page avenue, was about level. Plaintiff’s opinion or guess (nothing more can be made of his evidence on this point) that he could not have seen the car if he had looked, is clearly shown to be erroneous by the foregoing facts. His evidence is against the mathematics of his environment. If he had looked before driving out of his yard, he could have seen the car or trolley pole. Had he looked after he reached the street, when he checked his team to let the man and woman pass in front of him, at which time he was in seven or eight feet of the railroad track, he certainly could have seen the car. He says he d'id not look then, that he was looking before him. He shows that his attention was attracted to the persons then passing in front of him and when they had passed, without looking to the north and without listening for a car, he drove upon the track This was negligence, and negligence which precludes his right to recover, unless the evidence shows or tends to show that after he was in a position of peril the motorman who saw him could have stopped or checked the car in time to have prevented the collision. None of the witnesses place the distance between the car and the horses, when they stepped onto the track, at more than seventy-five feet. Plaintiff’s witnesses estimated the speed of the car at twenty-five miles per hour. The evidence shows that a car running at a speed of twenty miles per hour (the speed alleged) could be stopped by the use of the brake alone in a -space of one hundred and seventy feet, and by the use of both brake and reverse in a space of one hundred and thirty-five to one hundred and forty feet. Plaintiff, himself, placed the distance between the wagon and the car when he first saw it, and when his horses had just stepped on the track, at seventy-five feet, and described the time between when he saw the car and its collision with his wagon by counting “one, two, three.” Plaintiff’s evidence shows that the car ran from fifty to seventy-five feet after it struck' the wagon, or altogether from the time the motorman should have applied the brake about one hundred and twenty-five to one hundred and fifty feet, about as short a space in which it could have been stopped, according to plaintiff’s evidence. These facts demonstrate that the motorman’s evidence, that as soon as he discovered that plaintiff was driving on the track, he used his brake and reversed the power and did all he could to stop the car, is correct and that the evidence to the contrary is not reliable for the reason it is opposed to what actually occurred, and the. conclusion is irresistible that there was not time and space sufficient to stop the car in time to have averted the collision after the motorman saw plaintiff driving upon the track. The evidence, therefore, excludes the application of the last fair chance doctrine and the case presents a state of facts from which it is shown that plaintiff was negligent in driving on the track without looking or listening for an approaching car and the defendant was negligent in failing to sound the bell as the car approached the crossing and, perhaps, also negligent in running the car at an excessive rate of speed and by reason of the concurring negligence of both parties the car collided with the wagon causing the injury complained of. In such circumstances, that is, where the negligence of both parties contribute to cause the injury complained of, the law is well settled that plaintiff can not recover. Moore v. Railway, 176 Mo. l. c. 544; Davies v. Railway, 159 Mo. 1; Holwerson v. Railway, 157 Mo. 216; Rice v. Railway, 92 Mo. App. 35; Septowsky v. Transit Co., 102 Mo. App. 110, 76 S. W. 693.

We conclude that the defendant’s instructions in the nature of a demurrer to the evidence at the close of all the evidence should have been given and reverse the judgment.

Rey burn and Goode, JJ., concur. •