McAndrews v. St. Louis & Suburban Railway Co.

83 Mo. App. 233 | Mo. Ct. App. | 1900

BOND, J.

Action for personal injuries to plaintiff and damage to his wagon and team, caused by a collision with a street railway operated in the city of St. Louis. The answer was a general denial, and a plea of contributory negligence. Plaintiff had judgment for $500. .Defendant appealed.

Plaintiff was a teamster engaged in the business of hauling goods for merchants in the city. On the twenty-ninth of July, 1896, while so employed, he drove upon Wash street, one of the main thoroughfares of this city running east and west, whereon a double track was laid for the use of defendant. Plaintiff approached this street from the north and crossed its tracks so as to get on the south side. After driving some distance he observed ahead of him two wagons on the track; in proceeding he “swung partly on the track,” so as to get by the wagons; he was moving at an average trot, and proceeded in an easterly direction, without hearing or knowing of the approach of any train from his rear. A collision took place, with reference to which he testifies as follows : “The first thing I remember of it was, after the car had struck the wagon I looked around suddenly to see what it was and saw the car there, and that was the last I knew, and I was dragged under the wagon along the street.” Then follows a description of the injuries to himself and property, after which he adds: “Q. Now, as you moved down from Twenty-second street, tell the jury what signal you heard, if any; of any approaching car ? A. I didn’t hear any signal at all. The first signal I got was the car hitting the wagon. That was the first signal that I got. Q. Can you tell the jury or have you any memory of how far you were dragged? A. Well, no; not positively, I can’t. But I remember about where I was pulled out from under the wagon. I suppose it was some thirty or forty feet from where the car had struck the wagon. I do remember at the time when they went to pull me out of the wagon I asked them to wait a minute or two until I got breath. I wasn’t hardly able to get out by assistance and they let me remain there a minute or two and then got me out. Q. What made you drag — did you have' a hold of the reins. Did any part of the wagon go over you ? A. One of the wheels passed over me.”

Marius Dard testified for plaintiff as follows: “Q. Where were you at the time? A. I was looking out the basement window of the shop. Q. How far was the car from him, when you first saw the car? A. Well, when I first saw the car, lo.oking out the window, I should judge the car was about thirty to forty feet — somewhere like that. Q. Which way was McAndrew driving at the time ? A. East. Q. Where was he driving with reference to the track — how was he driving? A. He was part way into the track and part way on the south side of the track. Q. Were the wheels straddling the track? A. Tes, sir; a kind of avoiding two wagons. Q. What two wagons were they? A. A farmer’s wagon there, tied' to a telegraph post, and Mr. Wimer’s wagon ahead of that, facing eastward. Q. The farmer’s wagon was tied to the telegraph post — how far was that west of Wimer’s store? A. I should judge ten or fifteen feet. Q. And where was Wimer’s wagon? A. In front of his shop. Q. Now, when the collision occurred, where was the plaintiff’s wagon ? A. Well, it was just going down the track, and when it occurred it was almost opposite the basement window where I was. It struck the wagon and knocked his wagon in with Mr. Wimer’s wagon. Q. When it struck his wagon and knocked it into Wimer’s wagon, describe to the jury what occurred. A. When the wagon — when the car struck the wagon it knocked the front and hind wheel into Wimer’s. With that the team frightened and started off, and I ran out of the shop and tried to head them off on the south side of the street, and I couldn’t do it there and I ran north and seen Mr. McAndrew holding-on to the wagon, and I hallooed at him to hold on or he would get hurt; and at last I got a hold of the horse’s head on the north side of the street, and I looked and saw McAndrew holding from the axle, and they unhitched the team and got him out, and Mr. Wimer called me to get ready and get out; and some young man hallooed there: T will take him home,’ and they put McAndrew in and drove him off. I saw some firemen there and they hallooed.” * * * “Q. Did you see or observe the motorman before the car struck the wagon? A. Well, no; I didn’t exactly observe him, but I seen it was going down just the same as if there was nothing in front of him. -Q. When you first saw the car, about how fast do you think it was running? A. I guess about seven or eight miles an hour— a gait of that much. Q. Do you know how far this man was dragged, about ? A. Well, I should judge from where the wagons locked together, down about forty feet.”

As to the distance within which defendant’s car might have been stopped' under the conditions existing at the place of the accident, one of its former motormen testified that a car so laden and traveling as the one which collided with plaintiff, might be stopped in thirty feet, by the use of brakes alone, and might be stopped in fifteen .feet by reversing the power.

Appellant contends that upon the foregoing evidence the court should have directed a nonsuit. This view can not be sustained. The only negligence attributable to plaintiff is that he endeavored to pass wagons on a public street which obstructed his way, and that in the necessary use of the part of the street covered by the tracks of defendant, he went upon the same without looking or listening for the approach of trains and that he continued to use this part of the street without looking for the approach of a train from his rear, up to the time of the accident. Conceding that this was negligence on the part of plaintiff, yet the testimony fairly supports the inference that he went upon the track of defendant at such a distance ahead of the car in his rear, that the motorman in charge of the car, by ordinary care, could have stopped the car, after he had discovered the plaintiff in a position of peril. This evidence presented an issue as to the proximate cause of the injury to plaintiff and the damage to his property, which he was entitled to have the jury pass upon. The principles of law upon which this rule is founded have been so recently discussed by us, that it is only necessary to refer to the cases for the reasoning sustaining our conclusions on this subject. We are fully satisfied with the justice and logic of the rule, and that a proper regard for the interests of society demands its enforcement without abating one “jot or tittle” of its vigor. Klockenbrink v. St. L. & Meramec R. R., 81 Mo. App. 351; O’Keefe v. St. L. & Suburban Ry. Co., 81 Mo. App. 386; Cooney v. Southern Electric Railway Company, 80 Mo. App. 226.

This disposes of all the assignments of error except one, which is, that though plaintiff pleaded, yet he did not prove that the city ordinance invoked by him was accepted by defendant. The record shows that plaintiff’s attorney offered the entire ordinance in evidence, remarking that he would only read what applied to this case, to wit, the fourth subdivision of section 12. Defendant’s attorney, as he had the right to do, requested the reading of another subdivision of the ordinance, whereupon plaintiff’s attorney read both of the two subdivisions of the ordinance, but gave no evidence that defendant had accepted the ordinance in question. This was a fatal omission of proof. In a recent case the same ordinance was relied upon as a ground of negligence in an action for personal injuries against a street railway, and was introduced in evidence without objection on the part of the defendant in that case. The supreme court decided that this was not enough to establish the acceptance of the ordinance by defendant, nor could such acceptance be legitimately inferred from the fact that the defendant operated its street railway over the streets of the city which had enacted the ordinance. Sanders v. Southern Electric Ry. Co., 147 Mo. 411. Under this ruling there was an essential omission of proof in the case at bar. The judgment is therefore reversed and the cause remanded.

All concur.