— This plaintiff was hurt by the collision of a trolley car of the defendant company with & United States mail wagon in which he was riding. The accident occurred in the afternoon of November 16, 1900, at the intersection of Montgomery and Ninth streets in the city of St. Louis. The plaintiff, whose business it was to take up mail from mail boxes on the streets of the city, was riding in a one-horse wagon, in prosecution of his duty, on the date named. About half past two in the afternoon he approached Ninth street, driving from the east westwardly along Montgomery street. . There was a single street-car track on Ninth street and cars ran thereon only from the south to the north. When the plaintiff got to Ninth street, but before attempting to cross it, he looked south and saw the car that struck him, approaching the intersection of the two •streets; but he says, a half block or more away. Supposing he had time to cross Ninth street before the car would reach Montgomery, he started across the former street; but the car struck the wagon, knocking it over with such violence that he was rendered unconscious. Plaintiff testified that he drove slantingly .across the street for fear of breaking the wagon’s springs and that he let his horse walk over the car track because he thought he had plenty of time. His view of the car was unobstructed. His explanation of the accident is that he misjudged the speed at which the car was running and that it came too swiftly for him to get over the track in safety. The negligence •alleged is that the car was running át a reckless and
Plaintiff had a verdict and defendant appealed.
It is contended the court should have sustained the demurrer to the plaintiff’s evidence, there being no testimony to show the speed of the car was unlawful, or that the motorman discovered the plaintiff in a position of peril in time to avoid striking the wagon. Prom the facts stated, it will be seen that two accounts of the accident were related. According to the plaintiff’s version he actually saw the car when it was one hundred and fifty feet or more away, with no obstruc- ’ tion intervening, and drove slowly over the track in a northwesterly direction, supposing he had time to get over before the car would reach him. According to the defendant’s version, a furniture wagon interfered with the view between the car and the mail wagon until about the instant of the collision; which resulted, there- ■ fore, not from undue speed or the motorman’s inattention, or languid efforts to check the car .on seeing
The first instruction given for the plaintiff dealt with the averment of reckless speed in the operation of the car as it approached the crossing. It told the jury, in substance, that if they found plaintiff was injured while crossing Ninth street in a careful manner, and after looking and listening for an approaching car before attempting to cross, and if they found the injury was due to the operation of defendant’s car at a reckless speed, the verdict should be in his favor. The complaint preferred against that instruction is that evidence was lacking to justify the submission of the question of whether the car was operated at a reckless speed. No witness swore concerning the rate of speed in figures; that is, no witness undertook to say how many miles an hour the car was running; nor was it essential to make proof of that sort. This collision was at the intersection of streets and it often becomes a question for the jury, regardless of any municipal ordinance regulating the speed of cars, whether a car was operated at a careful or a careless velocity when it neared a street crossing. Holden v. Railway Co., 177 Mo. 456, 73 S. W. 973. The plaintiff testified that in driving about St. Louis for forty years he had crossed tracks thousands of times the same distance ahead of cars that he was in this instance and, therefore, thought he had time to get over in safety. There was other testimony which had a tendency to show the car was running at too high speed; and while the evidence on the point was not conclusive one way or the other, it was to be weighed by the jury on the issue
The second instruction given for the plaintiff advised the jury that although they found plaintiff saw; ■the car approaching Montgomery street, but misjudged either its distance or its speed, and drove on the track when it was dangerous to do so, it was nevertheless the duty of the motorman to use all practicable means to check the speed of the car and avoid a collision after he had seen or by exercising ordinary care might have seen the danger of colliding with the wagon; and if they found the motorman was negligent in that regard, that his neglect was the direct cause of the collision, and that the plaintiff was exercising ordinary care at the time, plaintiff was entitled to a verdict. That instruction is criticized for leaving the question,of whether the plaintiff was in the exercise of ordinary care open, if the jury found he misjudged the speed or the distance of the car. The argument is advanced that he could not have been in the exercise of ordinary care if he did either; as either was in itself a lack of ordinary care. This criticism is extreme. A man might easily misjudge the speed of a car or its distance from him, after straining his senses to ascertain whether he could safely venture on the track; might make an honest mistake and under an erroneous impression con
The position is taken and firmly maintained by the defendant’s counsel that if the plaintiff drove on the track when the car could not be stopped before reaching him,, he cannot recover, and that this is the law regardless of whether he looked for a car or disregarded one which he realized might hit him,. and. re
The other phase of the case may be thus stated: If the plaintiff drove on the track without looking or listening but the motorman was negligent in his watch, or in checking the car after seeing plaintiff’s danger, when, if he had been diligent, he could have avoided the collision,, the plaintiff was entitled to a verdict notwithstanding his negligence. The second, instruction was according to this view; and the two instructions submitted the two theories .on which the plaintiff might recover.
At the instance of the defendant the court gave instructions regarding the plaintiff’s duty to look and listen for an approaching car before he went on the track, in obedience to the direction of the Supreme Court; which reversed the first judgment in this cause for the refusal of those instructions.
Three instructions, besides the one for a nonsuit, were requested by the defendant and refused. The
Tke judgment is affirmed.