52 Mo. App. 36 | Mo. Ct. App. | 1892
This action was commenced before a justice of the peace to recover damages for injuries received by the plaintiff in a collision with one of the cars of the defendant’s railway. On trial anew in the circuit court before a jury, the-plaintiff had a verdict and judgment for $45, and the defendant prosecutes this appeal. This verdict was, beyond all question, a compromise verdict, as the plaintiff proved actual expenditures by reason of the injuries to the amount of $76, and there was no countervailing evidence. He also proved that he was laid up eight days by reason of the hurt. "We have come to the conclusion, after reading the record, that the case must be disposed of on the assignment of error that the court, at the close of the whole ease, should have directed the jury that the plaintiff could not recover.
The defendant is a corporation operating a street railway on Morgan street in the city of St. Louis, propelled by the well-known underground cable by means of a grip extending down to it through a slot fixed in
The plaintiff, at the outset of his narrative on the witness stand of the way, in which the collision happened, laid stress on the fact of his listening for the signal, but did not say anything about looking for the approaching train. It was only when his attention was directed to the matter of looking, and chiefly on his cross-examination, that he claimed that, by reason of the obstruction of buildings, he could not have seen it sooner than he did. The undisputed physical facts
It has long been settled in this state and elsewhere, in cases where travelers have received injuries from collision with steam railway trains at crossings, that it is the duty of the traveler to exercise his faculties on approaching such a crossing, that is, to look and listen. Our supreme court has gone even further, and has in several cases established the rule that it is the duty of the traveler to stop, look and listen, and, if he fails to do this and collides with an approaching train, he is precluded from recovering damages by reason of his contributory negligence, although the servants of the railway company in charge of the train may have failed to give the customary or statutory signal on approaching the crossing. Henze v. Railroad, 71 Mo. 636; Zimmerman v. Railroad, 71 Mo. 476; Drain v. Railroad, 86 Mo. 574; Lenix v. Railroad, 76 Mo. 86; Stepp v. Railroad, 85 Mo. 229. The duty of stopping is not an obligatory duty under all circumstances (Kelly v. Railroad, 88 Mo. 534), and for obvious reasons we are of opinion that it cannot be regarded, as a matter of law, as ordinarily the-duty of a traveler on the streets of the city of
A circumstance which will take the ease out of this rule may exist, where the person sustaining the damage reaches the place of danger and is there discovered by the person in charge of the approaching train in such time that such person, by the exercise of ordinary and reasonable care, might have averted the injury; or where, if such person were exercising ordinary and reasonable care in keeping a lookout in front of him, he might have discovered the traveler at the point of danger in time to have avoided the injury. Bergman v. Railroad, 88 Mo. 678. The duty of the ordinary traveler approaching the crossing of an electric street railway thus to look and listen, and the corresponding obligation of the driver of the train to use reasonable care and exertion to avoid injuring him after discovering him in a position of danger on the
Now the evidence, taken as a whole, fails to show that the gripman of the defendant’s train did not exert himself as well as he could to prevent the collision, as soon as he perceived that the plaintiff was attempting to drive across the track immediately in front of the train. It must be remembered, according to the plaintiff’s testimony, that the plaintiff whipped up his horse and attempted to drive rapidly in front of the gripcar at a time when the head of plaintiff’s horse was only ten feet from the railway track. It was snowing at the time, though there is no evidence as to the condition of the tracks. There was evidence that a series of experiments had placed the distance at which trains can be stopped under various circumstances at from seventeen to forty feet, and, as the grade was a little downward at that point going east, the evidence of the defendant’s superintendent was that a gripman would do well if he could stop his train at a distance of twenty-five feet with either snow on the track or a wet and slippery track; and there was no countervailing evidence. No one, we think, can read this record without getting in his mind a very clear image of a catastrophe, which many accustomed to ride on these gripcars have seen- and which may have been familiar to most of the jurors. The gripman, approaching a crossing, sees a traveler driving across the cross street toward the point of intersection. He has the right to conclude that the traveler will not be so foolhardy as to run immediately in front of his train, and so in substance the court instructed the jury in this case.
The judgment of the circuit court will accordingly be reversed with the concurrence of all the judges.