132 Mo. App. 551 | Mo. Ct. App. | 1908
This is an action for damages done to plaintiff’s wagon and team of horses by coming into collision with one of defendant’s street cars. The judgment was for the plaintiff in the trial court.
But we will pass that by, for defendant’s - second contention is the decisive point in the case. That is, that there is no ground of recovery under the last chance rule for the reason that there was no justifiable ground for holding that the motorman was negligent after becoming aware or after he should have become aware of the negligence of plaintiff’s servant. We have so concluded.
Plaintiff’s servant, testifying for plaintiff, stated that had he been observing, he could have seen the car coming meeting him, on the same track, for a half mile or 'more, and that he actually did see it for a block or two, which at that part of the city would be between six and twelve hundred feet distant. That when he saw it his wagon was running with two wheels between the rails of the west track and the other two in the
Now what was the situation as viewed by the motorman, taking him, as we must, to have been a man of ordinary sense and prudence? If, as plaintiff contends, he should have observed the man and team sooner than he did, he would merely have seen the ordinary thing of á man driving on the track. He would of course suppose that the man would get off. He would not have seen an inattentive man oblivious to danger. He would have seen a man who was aware of the danger if he remained on and who, himself, in point of fact, Avas intending to get off, and only failed by reason of the unexpected accident of the wheel sliding on the rail. Allowing that the driver, under the circumstances, was not guilty of negligence in being on the track, he was not negligent in not attempting to get off sooner, for he made the attempt in time but for the unexpected sliding of the wheel.
And so of the motorman; if he had the driver in vieAV for a full half mile as plaintiff contends he did have or should have had, he would only have observed a man avIio had ample time to get off the track. The
It would clearly be unfair and unreasonable to say that the motorman should have begun his effort to stop the car sooner than he did. There was nothing in the situation to suggest to him that he should. Plaintiff’s case must rest upon the ground that the motorman is to be charged with negligence in not foreseeing that the wagon, without a load, would slide along the rail, and this we have already said would be unwarranted.
The judgment must be reversed.