Inman's Administratrix v. United Railways Co.

| Mo. Ct. App. | May 2, 1911

REYNOLDS, P. J.

— Martin Inman, driving west in his buggy between the north rail of defendant’s north track along Wash street and the curb, in St. Louis, when about one hundred feet west of the intersection of Sixteenth street with Wash, found a surrey standing in the street against the north curb, the surrey, about four feet nine inches wide, facing to the west. To continue on his way and pass the surrey it was necessary to turn off and drive between the surrey and the rails or track of defendant’s road. His buggy was of the same width as. the surrey, and the space between the curb and the north rail was about 10 feet. Before turning toward the track Mr. Inman looked through the window which was in the rear curtain of his buggy to see if any car was following. Seeing none he turned on toward the track and just as the left forewheel of his buggy reached the north car track, a car, operated by - defendant, struck his buggy, broke the wheel, bent the axles, broke off the “reaches,” as it is called, that is the coupling pole that coupled the hind and front end of the buggy together, and plaintiff was thrown out and cut, bruised and shaken up, being unconcious for awhile.. He brought this action, charging violation of the “speed ordinance,” and the “vigilant watch ordinance” of St. Louis, and also invoking the “last chance” doctrine, charging on this, that by the exercise of proper and reasonable care defendant’s agents and servants could have stopped the car and avoided the collision with the vehicle driven by him but that the motorman of the car negligently and carelessly failed so to stop in time to avoid the collision with Ms buggy.

The answer was a general denial, with a plea of contributory negligence. This the reply denied.

■ At the trial before the court and jury, while there was no evidence introduced showing any violation of the “vigilant watch” ordinance, there was some evidence that the speed at which the car was being run was 12 miles an hour and that the track was- clear between plaintiff’s buggy aud the oncoming car; that when plaintiff drove his buggy on the car, track the car was from 100-to 200 feet east of him and that it was equipped with appliances, by the use of which it could have been, stopped, if going at the rate of twelve miles, an hour, in its own length or, as a witness said, in thirty-five feet, which is about four feet less than the length of the car. At the close of plaintiff’s evidence defendant interposed .a demurrer. The trial court sustained this and plaintiff took a nonsuit with leave to move to set it aside. That motion being filed in due time, was sustained,,by the court on the assigned ground that the court .had erred in sustaining defendant’s demurrer to the, evidence. From this defendant duiy perfected its appeal, to this court. Pending the appeal Mr. Inman died and. the cause was duly and properly revived in the name of his administratrix. „ , ,

It is urged by learned counsel for appellant that on the evidence in the case plaintiff was not entitled to recover under the assignment charging failure to warn him of the car’s approach, because, as it is alleged, there is no evidence of such failure. This assignment is well made. All that appears as to sounding a bell was this (question to witness) : “Do you have any recollection as to whether a bell was sounded?” Answer: “I do not.” This is no evidence — not even negative (Stotler v. Railroad, 200 Mo. 107, 98 S. W. 509) — of non-compliance with the requirement to warn by ringing a bell.

The second, third, fourth and fifth assignments maybe considered together, as they all go to failure of proof of actionable negligence by defendant and to proof of the contributory negligence of the plaintiff below.

The ordinance fixes the maximum speed at the point at which this accident occurred at ten miles an hour. There was evidence from which the jury had a right to draw the inference that this car, at the time of the accident, was' going at the rate of twelve miles an hour. It is true that the witness who testified to this disclaimed being an expert on the rate of speed at which vehicles were going, doing this under cross-examinátion, but he consistently and distinctly testified in his direct examination and to some extent in his cross-examination even, that in his opinion and from his best judgment he thought the car was going at twelve miles an hour. He was positive ’ that it was “runing fast.” His testimony was given in the presence of the jury and he frankly and fully stated his experience and means of judging and exactly what he meant by his estimate. It was for the jury to determine what weight should be given to his testimony as to this rate of speed. With that rate of speed in evidence there was testimony that the car could have been stopped within 85 féet, as before stated, or in a distance not exceeding 35 feet. Whether that evidence was true, whether the witness who gave it was entitled to credit, v/ere matters for the jury. There ■was evidence from which the jury had a right to infer that the day was clear, that there was an unobstructed track, nothing to obstruct the view between the approaching car and this buggy, and that when the buggy turned in toward the track the car was ninety or one hundred feet east of it, and that it could have been stopped in about thirty-five feet. Upon this evidence it was for the jury to determine whether, with the power at his command and the appliances with which the car was equipped, the motorman running the car could and should have stopped in time to have avoided the. accident, by exercising ordinary care to that end with safety to those on the chr. If he could, then under the last chance doctrine, it was his duty to have done so and avoided the accident. If he did not, defendant is liable for the consequences. We hold on a reading of all the testimony in this case, that the learned trial court was justified in setting aside the order sustaining the demurrer to the evidence and that its action in granting a new trial was right. That judgment is affirmed.

Nortoni and Caulfield, JJ-, concur.