186 Mo. App. 567 | Mo. Ct. App. | 1915
— This is a suit under the wrongful death statute for damages, accrued to plaintiff through defendant’s negligence. Plaintiff recovered and defendant prosecutes the appeal.
Plaintiff is the widow of Adolph Meierhoff, who came to his death through being run upon by one of defendant’s trolley cars. Defendant owns and operates a railroad and line of suburban electric cars between the city of St. Louis and Creve Coeur Lake in St. Louis county. Plaintiff’s husband came to his death in December, 1910, through being run upon by one of defendant’s cars, about 6:15 o’clock in the morning, while darkness prevailed, at Overland Park station, on defendant’s railroad. Overland Park station
It appears defendant maintains double car tracks running east and west through the small suburban settlement known as Overland Park, and the north track is occupied by cars going westward, while the south track by cars moving eastward. Defendant had constructed and maintained, for the accommodation of persons desiring to take or alight from its cars at Overland Park, two separate cinder platforms. One of these platforms was on the south side of the south track, and adjacent thereto stood a small station house for the use of passengers. There is some controversy in the case as to whether or not defendant owned the station house, but it is abundantly shown that it stood
Plaintiff and her husband resided at- Overland Park and he was engaged at a brickyard in St. Louis county, some several miles to the westward. Rodgers, the superintendent of the brickyard, likewise resided at Overland Park and it was the custom for the two men -to go to and from their work together on defendant ’s cars. They usually boarded the westbound car
There is an argument put forward on these facts to the effect that “trippers” did not stop at this particular station and, therefore, no obligation obtained to look out for passengers desiring to take one there, but even if the proposition be sound, the evidence does not sustain the view in which it is advanced, for the witness says sometimes the “tripper” stopped and sometimes it did not, as, of course, is usual, for it depended upon whether there were passengers to be received or discharged at that place. The evidence is entirely clear that plaintiff’s husband came to his death while an invitee at a point on defendant’s tracks provided for him to pass with a view of taking an approaching car, and this, too, at a station where defendant was in duty bound to be on the lookout for passengers intending to board any of its conveyances, whether “through” cars or “trippers.”
The argument on the part of appellant proceeds as if the right of recovery is asserted under the humanitarian rule, and it is said the judgment may not be sustained for the reason it does not appear defendant could have stopped the car and averted the collision after the motorman saw, or might have seen, plaintiff’s husband in a position of peril. But obviously this argument is beside the ease, for the theory of the law invoked is not the humanitarian rule but rather that plaintiff’s husband was an invitee of defendant at its station at the time and place in question, under circumstances which impelled defendant to exer
But it is said no recovery may be allowed because decedent was negligent for1 his own safety, in that he attempted to cross the tracks immediately in front of an approaching car. The special circumstances above adverted to relieved plaintiff’s husband, in a measure,, from the obligation to look and listen for the approach of a car immediately before stepping upon the track, because, as an invitee there, he was justified in assuming defendant .would exercise due care with respect to him. The evidence is the car was 150 feet distant when Meierhoff and Rodgers stepped upon the north track on which the collision occurred, and it does not appear that either one then knew the great speed at which it was moving toward them. Indeed, they were facing northwest following the cinder path as defendant had invited them to do and the car moving west was, therefore, partly in the rear. Obviously it cannot be said, as á matter of law, that an ordinarily prudent person in the circumstances stated, desiring to board the car from the opposite side of the track would not venture to cross on the pathway provided, when the car was 150 feet away and approaching a stopping place. With respect to this subjedxmatter, too, the instant case is to be distinguished from that of a trespasser or a pedestrian on the track, for it is said the invitee, approaching the place provided for the reception of passengers, viewed as a reasonably prudent man in the
What has been said sufficiently disposes of the argument directed against plaintiff’s first instruction, and it is unnecessary to prolong the opinion with respect to that matter.
The judgment should be affirmed. It is so ordered.