179 Mo. 583 | Mo. | 1904
— A wagon, being driven by plaintiff in the track of defendant’s street railroad, was struck and turned over by a street car, the plaintiff was thrown out and injured, and brings this suit for dam
The petition states that the plaintiff was driving south in the railroad track after dark when a car of defendant going in the same direction struck the rear end of the coupling pole of the wagon, turned the wagon ■over and threw the plaintiff out, in consequence of which he was severely injured; that the motorman in charge of the ear failed to ring a hell or give any signal ■of his approach or to stop the car or to take timely steps to stop it,1 ‘ and that this failure was also due to the bad ■condition, bad repair and insufficiency of the car, of the brake, chain, shoe-chain, cogwheels and other brake apparatus.” The answer was a general denial and a plea of contributory negligence. •
The plaintiff’s evidence tended to show as follows:
The accident occurred in the northern suburbs near •Calvary cemetery. It was after dark and there were no street lights. It was a wagon designed for hauling lumber, it had no bed, it had a long coupling pole which extended ten or twelve feet behind the hind wheels. Plaintiff had discharged a load of lumber near the cemetery and was returning to the city. When he reached the gate at the cemetery he drove into the railroad track and followed it for a distance of about three blocks to the point of the accident. It was the west track, upon which south-bound cars run. The grade is downward from the point at which plaintiff entered the track to the point at which the collision occurred. There are no cross-streets in that vicinity. The car came down the grade at a rapid speed, the plaintiff hearing the noise of the running car looked back and seeing the danger, immediately attempted to pull out of the track, but before his wagon got clear the dash board of the car struck the projecting end of the coupling pole with snch force that the wagon was turned over and the plaintiff was thrown out and injured. The point of contact between the dash board
The plaintiff testified: “I heard a noise-behind me, and then I looked back and the car was right upon me and I swung out of the track as quick as I could, and the car caught the coupling pole and turned the wagon over and knocked me out; I didn’t know just what happened right after that.” He further testified that he kept in the track all the way from the gate of the cemetery to the point of collision, and that he did not look back at all until he heard the car immediately behind him. ‘ ‘ Q. After you had started down the street, did you look back at any time to see if the car was coming? A. No, sir, not until I heard this noise. Q. Not until you heard the car and then it was immediately behind you? A. Yes, sir. . . . Q. When you looked back how far was that car behind you? A. As close as I could judge about twenty-five or thirty feet.”
The motorman, who was plaintiff’s witness, said: “In regard to the collision — well I left the north end of the route at Calvary, coasting down the grade after starting; I do not know just what distance it would be — when the wagon probably went a quarter, something like that, I seen the wagon probably 'ten or twelve steps, not more than ten steps and it was then in darkness. . . -. Q. Did you give any signal at the time you first noticed the wagon? A. No, sir. Q. Ring any bell? A. No, sir. . . . [On cross-examination:] Q. Why didn’t you sound the gong when you first saw the wagon? A. I didn’t really have time in a case like that. Q. You mean that in forty-five to sixty feet you could not sound the gong? A. No,-1 don’t mean that. Q. Well you say you saw the wagon fifteen or eighteen steps? A. I said steps or feet, I don’t mean any more than the distance across this room [presumably referring to the room in which his deposition was being taken]. Q. That would not be over fifteen feet. A. Well, call it fifteen feet, I don’t mean any forty-five or fifty
This witness was of the opinion that at the instant of the accident the hind wheels of the wagon were in the track, the front wheels being only turned outward. But the plaintiff himself said several times that all the wagon except the end of the coupling pole had cleared the track. “Yes, sir, the wheels had just dropped over the track. Q. The rear wheels'? A. Yes, sir.”
At the close of the plaintiff’s testimony the defendant asked an instruction in the nature of a demurrer to the eyidence, which the court refused, and an exception was taken.
The defendant’s testimony tended to prove that the brake was in good condition and that the car had never been reported as out of repair.
At- the request of the plaintiff the court instructed the jury to the effect that if the accident occurred because the car was negligently run against the wagon without notice or warning or the ringing of a bell or other signal, or because there was such a defect in the brake as that it was not sufficient for ordinary use, and
The court refused an instruction asked by the plaintiff to the effect that although the plaintiff may have been negligent in failing to look back for the approaching car, “yet if the collision could have been avoided by defendant keeping the brake or brake apparatus of its car in suitable repair and working condition, or by the exercise of ordinary care on the part of defendant’s servant in running and operating its car, or in looking-ahead to discover persons or wagons on its track, then the defendant is liable in this action. ’ ’
There were four instructions given at the request of the defendant which we deem it unnecessary to copy into this opinion. The court sustained the plaintiff’s-motion for a new trial on the ground that it had erred in giving the defendant’s fourth instruction.
That the plaintiff was guilty of negligence directly contributing to cause the accident appears'from his own testimony. He was not a trespasser on the defendant’s, track; the track was laid in a public street and therefore he had a right to drive his wagon along it. But in going upon the track he chose the more dangerous part of the street; he could with more safety to himself have driven: along the west side of the street, outside the railroad,, which the evidence shows was macadamized and adapted for travel. His duty to himself was to use ordinary care to avoid injury, and when he selected the more dangerous part of the street for his use, his care-should have been commensurate with the greater danger thus assumed. He knew — the law compelled him to know —that cars were liable to come towards his wagon from behind, and he should have been on the lookout for them, he should have looked in the direction from which he
Granting that the motorman was negligent in not sounding his gong — that the 'defendant was negligent in allowing the ear to be in use without a safe brake — that those facts contributed to the catastrophe — still the accident would easily have been avoided if the plaintiff had taken care to look for the car which he knew was liable to come and seeing it had driven out of the track.
It is doubtful if the evidence shows any negligence on the part of defendant. The motorman was not an unfriendly witness to the plaintiff. He had been discharged by the defendant and had been on very pleasant relations with the plaintiff ever since his discharge. We do not mean to imply that he was not truthful in his testimony, but only to say that he was not reluctant to tell anything that he knew that would benefit the plaintiff’s case. He said that he did not sound his gong, because he did not see anything on the track until he was so close
Respondent contends that the case should have been given to the jury on the theory of his second instruction which the court refused, that is, that the plaintiff was entitled to recover notwithstanding his own negligence.
There is nothing in this case to bring it within the doctrine of Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678.
There is no evidence tending to show that with a brake in perfect repair this car could have been stopped in time to avert the accident after the motorman saw the wagon; there is no evidence tending to show that the motorman was not on the lookout, or that he could by the exercise of ordinary care have seen the wagon before he did see it. Plaintiff’s own evidence shows that the motorman did everything in his power, after he saw the danger, to prevent the collision. In no view of the evidence was the plaintiff entitled to recover. The court •should have given the instruction asked by defendant in the nature of a demurrer to the evidence, but since the
The order sustaining the motion for a new trial is reversed and the cause is remanded to the circuit court with directions to overrule the motion for a new trial and render judgment on the verdict for defendant.