179 Mo. 666 | Mo. | 1904
— This is an action for twenty thousand dollars damages for personal injuries sustained by the plaintiff, on November 29, 1899, at the intersection of Longfellow and Plant avenues, in the town of Webster Groves, by reason of a collision between one of defendant’s cars and an open wagon in which the plaintiff and her brother were riding. There was a judgment for the plaintiff for two thousand dollars, and defendant appealed. The negligence charged in the petition is as follows:
“Plaintiff alleges, as the specific facts constituting the said negligence of defendant, that at the time and place of said collision defendant’s said electric car was being run by its said agents and employees at a rapid and dangerous rate of speed, on a descending grade. The night was growing dark, but said car carried no headlight, no bell was sounded and no warning of any*670 Mud given of the approach of said car until too late to enable plaintiff and her said brother to escape said collision; that defendant’s agent and motorneer in charge of said car saw, or by the exercise of ordinary care would have seen, the danger and peril of the plaintiff, in time to have stopped, or so have checked the speed of said car, as to avoid said collision, but failed to either stop, or check the speed of said car.”
The answer is a general denial and a special plea that the plaintiff and her brother were guilty of contributory negligence.
The case made is this:
Longfellow avenue runs east and west, and Plant avenue runs north and south. The defendant has an electric street railroad on Longfellow avenue. The cars run west on the tracks on the north side of the street and east on the tracks on the south side of the street. From the south track to the south side of Longfellow avenue at Plant avenue it is twenty-two feet. From Plant avenue looking westwardly, Longfellow avenue is perfectly straight for a-distance of twelve hundred feet, and the grade rises three and a half feet to the hundred. The plaintiff, her mother, two sisters and her brother raised vegetables on a farm south of Webster Groves, and she and her brother sold the same to residents of Webster Groves, going into town two or three times a week. On the day of the accident the plaintiff, a woman twenty-three years of age, and her brother, two years younger, were driving north on Plant avenue, in an open wagon, in the evening between dusk and dark. When they reached Longfellow avenue she and her brother say they stopped with the horse on Longfellow avenue and the wagon just south thereof. They say that while in that position they could see west on Longfellow avenue at least a block. There were no houses on that side of Longfellow avenue, and nothing to obstruct their view for at least twelve hundred feet. They
George W. Leming testified for the plaintiff that he lived in Webster Groves and was engaged in the express business; that he was driving west on Lockwood avenue towards Plant avenue, and when he reached Plant and Lockwood he saw the headlight of the car coming eastwardly from the raise at the Congregational church (which was twelve hundred feet west of Plant avenue), and that he also saw the plaintiff’s wagon was coming north on Plant avnue towards Lockwood avenue; that when he got to the culvert, the motorman on the electric car was ringing his bell and he wondered whether he was ringing for him or the other wagon; that ‘ ‘ at that time” the plaintiff’s horse was close to the mouth of Plant (avenue.” Over the objection of the defendant that he had not shown himself qualified to speak, this witness was permitted to testify that the car was running at the rate of twenty-five miles an hour, but he said he could not say whether it was running faster or slower than the cars usually ran at that point. He further testified that he saw the headlight burning on the car, and that when he passed Plant avenue, the plaintiff’s wagon was fifteen or twenty-five steps from Lockwood avenue, and that the car was in the neighborhood of from fifty to seventy-five feet west of the culvert; that anybody coming into Lockwood avenue could see a car for about four or five hundred yards and sometimes even farther than that; that he did not notice any slacking of the speed before the collision; that when the
This was all the evidence for the plaintiff outside of the testimony as to the nature and extent of her injuries, as to which the doctors disagreed as to whether they were simple and not serious, or were grave and probably permanent. The defendant demurred to the evidence, the court overruled the demurrer and the defendant excepted.
Daniel R. Fauste testified for the defendant that he was the motorman of the car; that from the Congregational church at the top of the slope until he got three-fourths of the way down the slope, the car ran at a speed of fifteen miles an hour, but before the car reached Plant avenue it had slowed down to eight or ten miles an hour; that he had no power on going down the slope; that as he went down the slope he sounded the gong and sounded it more as he approached Plant avenue; that there was a headlight burning on the front of the car; that he did not see the plaintiff’s horse and wagon until his car got within about fifteen or twenty feet of Plant avenue; that it was dark and the horse was not over three or four feet from the track at the time; that he rang his bell loudly and applied his brakes to stop and at that time the wagon was driven right rapidly across the track in front of the car; that he applied the brake and also reversed the current, and that the car ran just its own length, thirty-five to forty feet, after it struck the wagon. On cross-examination he said that he commenced to take up the slack of his brake when about two hundred yards west of Plant avenue; that the headlight on the car threw a light about fifty or seventy-five feet in front of it; that going down grade at the rate of ten miles an hour the ear could not be stopped in less than about seventy-five feet.
H. O. Rockwell testified for the defendant that he is the assistant manager of the defendant and is an electrical engineer; that it is twelve hundred feet, by actual measurement, from the west line of Plant avenue
Mr. Cheatham testified for the defendant that he was driving west on Lockwood avenue, and was about one hundred and fifty feet east of Plant avenue when the collision occurred; that he saw the car coming down the slope and saw the headlight; that the car stopped before it got to where he was and he thinks it stopped five or six feet from where the accident happened.
T. L- Murrier testified for the defendant that he was the conductor of the car; that the car ran down the slope at a speed of fifteen miles an hour; that the gong was sounded constantly as the car went down the slope; that the sounding of the gong and the reversal of the current attracted his attention; that the headlight was burning on the car, and was broken by the collision; that the car did not run more than its own length after striking the wagon.
This was all the evidence in the case. The defendant again demurred to the evidence, the court overruled the demurrer and the defendant excepted. The plaintiff’s instructions predicated a right to recover upon a negligent rate of speed of the car, and upon the proposition that the defendant’s servants saw or might have seen that the plaintiff was in a position of imminent peril in time to have stopped or checked the car and to have averted the accident, and negligently failed to do so. There was a verdict for two thousand dollars. This court has jurisdiction because the constitutionality of the nine-jury law was called in question, but as
I.
The plaintiff bases a-right to recover upon the rate of speed at which the car was run. •
No law or contract regulating the rate of speed of .the defendant’s cars was shown. The common law therefore applies. One witness for the plaintiff put the speed at twenty-five miles an hour, but as he did not show himself qualified by training or experience to speak to that question, his testimony need not be further considered. The only evidence in the case is that the car ran down the slope at the rate of fifteen miles an hour and -thatwhen.it approached Plant avenue, it was slowed down to a speed of eight to ten miles an hour. On the face of the case, such a rate of speed at the time and place and under the circumstances of-this case can not -be held, as a matter of law, to amount to negligence. There were no houses on the south side of the street for -about twelve hundred feet west of Plant avenue and so •far as appears there were no intersecting streets; the track was straight and there was nothing to interfere with the- view for that distance. Anyone standing in the gutter at the intersection of Longfellow and Plant avenues, which was twenty-two feet south of the eastbound track, could see westwardly for twelve hundred feet. The car was lighted by electricity, and" had a headlight burning. The car made considerable noise running down the slope and the gong was sounded. Anyone who had looked could have seen and heard the car coming. Under such circumstances a rate of speed of fifteen or even twenty-five miles an hour does not, per se, constitute common-law negligence.
There was, therefore, no basis for a recovery upon such a theory and the plaintiff’s first instruction which
II.
The second contention of the plaintiff is that the-operator of the ear saw, or by the exercise of ordinary ■ care might have seen, that the plaintiff was in a position of imminent peril, in time to have stopped or checked ■the car-and to have averted the injury. The argument . of the plaintiff is that the track was straight for twelve .hundred feet; that the headlight lit up the track for ■fifty to seventy-five feet in front of the car; that, therefore, the operator of the car could have seen that the •plaintiff was crossing the track and was in imminent •danger, when the car was seventy-five feet distant from the wagon, and that the car could have been stopped or •at any rate its speed could have been checked so as to avoid the collision.
But if all this be conceded, it would not follow that the plaintiff was entitled to recover, for it is equally true that if the operator of the car could have seen the plain-t-iff’s wagon when twelve hundred feet distant, the plain•tiff could have seen the car at the same distance. The car was lighted by electricity and had a headlight. The wagon was not lighted at all. The plaintiff could have seen the car much more easily and distinctly than the operator of the car could have seen the wagon. Yet the plaintiff and her brother swear that when they reached the intersection of Plant avenue and Longfellow avenue and when their horse had gone onto Longfellow avenue and the wagon was still on Plant avenue, they stopped, looked and listened, and that they neither saw nor heard a car coming. They were then within twenty-two feet of the track and could see twelve hundred feet up the track towards the west. If this is true, and if they could not see a well-lighted car, with a headlight within twelve hundred feet of them, by what manner' of reason can
The plaintiff says that having thus stopped, looked and listened and neither seeing nor hearing a ear coming, she proceeded to cross the track; that she was riding in an open wagon, and that she did not look again until the horse and front wheels of the wagon had cleared the north rail of the east-bound track and while the rear wheels of her wagon were on the track, and then she saw “a glimpse of light” and looked towards-the west, and saw the car right upon them, and in an instant the collision occurred. She also says she saw no headlight, and heard no bell rung, although her own witness, Leming, and four other witnesses for the defendant testify that there was a headlight burning on the car and that the gong was being loudly sounded. The plaintiff’s contention is that the headlight lit up a space of fifty or seventy-five feet ahead of the car, the motorman could have seen the plaintiff’s wagon on the track and could have seen the imminent danger of the plaintiff when seventy-five feet distant from the wagon, and could have stopped or checked the speed of the car in time to avert the collision and did not do so.
Several conclusive answers to this contention are apparent. In the first place there is no evidence at all that the motorman failed to stop the car or check its speed after he saw or might have seen the imminent peril of the plaintiff. On the contrary, all the testimony is that he applied the brakes and reversed the current and sounded the gong loudly and continuously; and did everything that could be done. It is true that
Moreover, if the testimony of the plaintiff be true that she stopped and looked west when she reached the south side of Longfellow avenue and did not see a car coming, it is incomprehensible how a collision could have occurred. For this involves the deduction that a