194 Mo. 1 | Mo. | 1906
This is an action for damages arising from personal injuries alleged to have been caused by the negligent conduct of the defendant in running its street cars over the plaintiff at the intersection of Thomas street by Jefferson avenue in the city of St. Louis.
The cause was tried in the circuit court of the city of St. Louis, and at the close of the plaintiff’s evidence, the court gave an instruction in the nature of a demurrer to the evidence, whereupon plaintiff took a nonsuit with leave to move to set the same aside and grant a new trial. His motion was duly filed and overruled, and thereupon in due time he perfected his appeal to the St. Louis Court of Appeals. Owing to a dissent of
The following facts were developed on the trial:
Jefferson avenue runs north and south, and in it defendant has a double-track street railway, on which its cars are propelled by electricity. Thomas street intersects Jefferson avenue and runs east and west. At the time of the injuries of which he complains, the plaintiff resided on Thomas street, two or three blocks west of Jefferson avenue. Between 7:30 and 8 o’clock on the evening of September 26, 1900, plaintiff left his residence and started to the grocery store on the east side of Jefferson avenue, and across from Thomas street; he walked on the north side of Thomas street to Jefferson avenue, when he looked north and saw a street car coming south one hundred and fifty feet from Thomas street; and then turned south over the crossing, on which he walked until a little north of the center of Thomas street, when he left it and walked diagonally southeasterly to the crossing of Jefferson avenue, on the south side of Thomas street. At this point he stopped until the car passed him going south. What transpired immediately after this is told by plaintiff in his own words as follows: “Well, I was after, washing my feet, and I was in the house and I goes to take hold of my pipe, I wanted to get asmoke and Ihad no tobacco, and I run my shoes on without stockings and I started to go and get me some tobacco, and I took hold of a little pitcher that was there to get me a little beer, so at the same time I would have a cold drink. I started out and when I got down to the corner I stepped off of the sidewalk on the crossing. The car was coming down. I see a ear coming down from the alleys as I was passing along. I walked across the street and that car passed me by, and he was ringing his bell and going as fast as he could go; there is no-mistake in that. Well, I was within three, or maybe I had three steps to make before I got into the track and as soon as I got into the
On cross-examination he testified: “Q. You kept walking down towards the south walk of Jefferson avenue? Ans. Yes, sir. Q. And where were you when the car passed you by? Ans. I was about in here (indicating on the map). Q. Walking south? Ans. Yes, sir. Q. To let the car pass you by? Ans. Yes, sir. Q. You did not have to stop in order to let the car pass you by? Ans. No, sir, I did not have to stop. Q. When the car was passing and left the crossing clear, how far were you away from the near rail of the track? Ans.
The evidence further tended to prove that there was no headlight on the car, no gong or bell was rung, and the car was running at a speed from eighteen to twenty miles an hour. It further appears that there was a bright street lamp burning at the time, which lighted up the crossing so that plaintiff could have been readily seen by the motorman when he started to cross the track had the motorman exercised ordinary care to see him. The evidence also shows the cars to have been about one hundred and twenty feet apart; the car which struck the plaintiff did not stop after it struck him until it had run from 150 to 170 feet south.
Mr. McCarthy, an expert motorman, testified that the hardest kind of an electric car to stop could be stopped while running eight miles an hour in 70 to 80 feet at the highest..
Mrs. Foster testified that she saw the old gentleman, the plaintiff, go across the street, and she happened to notice the ear was coming very swift; that she did not know he was going to go right in front of it, but when he stepped in the track she hallooed, but it did not seem to do him any good, the car was right on him at the time. She testified that in the interval between the passage of the first car and the approach of the second, the one which struck the plaintiff, she walked from 2612 Thomas street past 2610, 2608 and 2606 and was in front of 2604 at the time of the accident. She testified further that she did not see the motorman do anything until he got about a half block beyond the crossing, when he stopped his car and came back. All the witnesses concurred in saying that the car was going very fast, from 18 to 20 miles an hour. The plaintiff also offered and read in evidence ordinance number 19,738, the 4th section of which provides:
I. The question for our determination at this time is the propriety of the action of the circuit court in sustaining the demurrer to the evidence. Under our system of practice, a demurrer to the evidence admits every fact which the jurors may infer if the evidence was before them. [Bender v. Railroad, 137 Mo. 240; Franke v. St. Louis, 110 Mo. 516; Patton v. Bragg, 113 Mo. 595.]
Conceding, then, to the plaintiff the benefit of the rule just announced, it must be admitted that the plaintiff was not trespasser, but had the right, equally with the defendant, to the use of the street on which he was injured by the defendant’s car, and that defendant was running its car at an unlawful rate of speed at the time the plaintiff was struck by it; that the motorman in charge of the' said car did not sound the gong or give plaintiff any other warning of its approach save by hallooing to him immediately before he was struck, and too late for him to escape the injury. The testimony further establishes that the car which struck plaintiff was following another car at the distance of about 120 feet; that the crossing on which plaintiff was injured was brilliantly lighted by an electric light, and that by the observance of ordinary care, or by keeping a vigilant watch for vehicles and persons on foot either on the track or moving towards it, the motorman could have discovered the danger to which plaintiff was
On the other hand, while the plaintiff was not a trespasser and had a perfect right to walk on the street, it was his duty, when about to cross the street railway of the defendant, to listen and look both ways for cars which the defend ant had the right to run on said street, before attempting to cross its tracks, and as he himself testified that he did not look north after the first car passed him but simply assumed that no other car would follow so closely after the car which had passed, it must be held that he was guilty of negligence in not looking in the direction from which the car came before stepping upon the track. In Bunyan v. Railroad, 127 Mo. l. c. 18, it was said: “The duty of one approaching the
From the evidence in this case, we think it is plain that the motorman either saw the plaintiff and recklessly disregarded all the rules of prudence and humanity in running him down, or if he did not see him, his failure to do so was owing to a reckless disregard of ordinary care in keeping'a lookout for pedestrians who had a right to use the street as well as the railway.
We agree with the majority of the Court of Appeals that it cannot be said upon the testimony in this case as a matter of law that plaintiff’s negligence was the direct cause of his injury, and that there was abundant evidence from which the jury, under proper instructions, might well have found that the plaintiff’s injury was the direct result of the excessive and unlawful rate of speed at which the car was being run and the negligence of the motorman in making no effort to warn the plaintiff by sounding the gong or check the car after he saw, or by the exercise of ordinary care might have seen, him in peril.
Accordingly the judgment of the circuit court is reversed and the cause remanded for a new trial.