Troll v. United Railways Co. , 169 Mo. App. 260 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. The defendant contends that the trial court erred in overruling its demurrer to the evidence. The theory on which this contention is based is, that the decedent, in attempting to cross. the track under the circumstances, was guilty of contributory negligence as mat • ter of law. This theory, in order to avail defendant must be affirmatively and conclusively established' by the evidence, for the presumption is that the decedent was in the exercise of ordinary care for his own safety. [Riska v. Union Depot R. R. Co., 180 Mo. 168, 79 S. W. 445.]

Can it be said that there is any such affirmative and conclusive showing? We think not. There is nothing in the case which positively negatives the idea that as he passed the building line into Olive street and thereafter, as due care required, decedent looked for an approaching car. The building line, it may be inferred, was about thirty-four feet north of the point of collision, or say 23% feet north of the west-bound track. It is true that Shaul testified that decedent' was “about fifteen or twenty feet, maybe a few feet more or less,” north of the west-bound track when decedent spoke to him, but this testimony, even if it be accepted as true, is vague as to the exact point decedent had reached, and is not positively inconsistent with decedent having looked and seen the approaching car before he turned to speak to Shaul. Or that testimony of Shaul’s might have been rejected by the jury altogether, for he also testified that, when decedent spoke to him, he, Shaul, was twenty-five or thirty feet north of the Olive street sidewalk, and he says that he was then east of the decedent. It well may be inferred from this that, after the decedent spoke to Shaul and had driven on, he still had twenty-five or thirty feet to go before reaching the north building line of Olive street, and of course might well have looked for an approaching car when he did reach that building line. This seems more reasonable than to place tlie decedent only fifteen to twenty feet north of the north rail, or 32% to 37% feet south of where Shaul stood, so that to speak to Shaul he must have had to lean his head out of the wagon and look around backward — a proceeding which would have been sufficiently extraordinary to have caused Shaul to mention it in his testimony if it had occurred. Shaul did not mention such a thing, but merely states that “he (the decedent) had the lines in his hands and was driving and he turns his face to me and spoke to me and drove on.”

Shaul’s testimony, however > that the horse was going at an ordinary walk, may well have been accepted by the jury instead of Webster’s testimony that ' it was going six miles, for the latter disclaims any approach to certainty in that respect and was not in a position to judge accurately. Assuming that the ordinary walk of a horse is four miles an hour, decedent was going 5-13/15 feet per second and it would have taken him 5-35/44 seconds to go from the building line to the point of collision, during which time the car, traveling thirty miles an hour or forty-four feet per second, must have traveled 255 feet, so that at the moment the decedent passed the building line into Olive street, if he looked — and the law presumes that he did (Powers v. Transit Co., 202 Mo. 267, 100 S. W. 655; Riska v. Union Depot R. R. Co., supra ) — he must have seen that the car was 255 feet, nearly a block, away. If- the car had not been running in excess of fifteen miles per hour in violation of the ordinance— and decedent had a right to assume that it was not (Powers v. Transit Co., supra; Deitring v. St. Louis Transit Co., 109 Mo. App. 524, 85 S. W. 140; Riska v. Union Depot R. R. Co., supra) — it would have taken it at least 11% seconds to reach the point of collision. During that time, decedent could have traveled at least sixty-seven feet and arrived in ample time at a perfectly safe place, well beyond the east-bound track. Under these circumstances, if decedent did not know, or in the exercise of ordinary care conld not have known, that the car w’as approaching at a rate of speed in excess of the ordinance rate, he was not guilty of negligence as matter of law in proceeding to cross the street. [Powers v. Transit Co., supra; Riska v. Union Depot R. R. Co., supra.]

We do not feel justified in holding that the decedent was guilty of contributory negligence as matter of law in not recognizing the excessive speed of the car, though others did, he being compelled to view the approaching car from a rather acute angle, and being very probably prevented, by being in a covered wagon, from hearing the noise which first indicated to the' others the excessive speed of the car. The others also saw the car as it passed them or immediately thereafter, an advantage the decedent did not have in time to avail of it. [See Strauchon v. Metropolitan St. R. R. Co., 232 Mo. 587, 135 S. W. 14; Deitring v. St. Louis Transit Co., supra.]

It may be reasoned with the same result if it be assumed that due care required decedent to look as his horse’s head was even with the north rail of the westbound track, or to look at what was probably the last moment before his horse stepped into the danger zone, viz., when the horse’s head had reached the south rail of the west-bound track. When the horse’s head was at the north rail of the west-bound track, the front hub, say twelve feet back, must have been about twenty-two feet from the point of collision. The car must then have been 165 feet west. If it had been running at the ordinance speed it would have taken it at least about 7% seconds to reach the point of collision, during which time the wagon, going four miles an hour could have traveled forty-four feet, so that the hind end of the wagon would have been twelve feet beyond the danger zone before the car, observing the ordinance, would have reached the point of collision. When the horse’s head was at the south rail of the westbound track, the front hub must have been seventeen feet from the point of collision and the car 127% feet west. At the ordinance speed, the car would have taken 5.79 seconds to reach the point of collision, during which time the wagon could have traveled nearly thirty-four feet, so that the hind end of the wa'gon would have been about seven feet beyond the danger zone before the car, observing the ordinance, would have reached the point of collision. The testimony of Mr. Webster, to the effect “that when the car was but twenty-eight feet away from the point of collision” the head of the horse was north of the north rail of the west-bound track, ten feet from the point of -collision, might well have been rejected by the jury, for, if such were the relative positions of the car and horse, it would have been impossible for the collision to have occurred as it did, the car going thirty miles ,an hour and the horse going four or six miles an hour. The horse would never have gotten even his head in front of the approaching car. The arguments based upon the supposed conclusiveness of that testimony need not be considered. This discrepancy in the testimony may be accounted for by the fact that Mr. Webster had but a fleeting glance at a very rapidly moving panorama.

II. The defendant’s contention that the court erred in giving plaintiff’s instruction No. 1 must be overruled. The only basis for this, contention is the assertion that there was no evidence to support the hypothesis, embodied in the instruction, that the violation of the speed ordinance was the proximate cause of the injury. That assertion is erroneous, because, as we have seen, the fact appears that if the ordinance had been obeyed the wagon would have cleared the track. [See Stotler v. Railroad, 200 Mo. 107, 1. c. 136, 98 S. W. 509; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, l. c. 596, 7, 135 S. W. 14; Niehaus, Admr., v. Railroad, 165 Mo. App. 606, I. c. 614.]

The ¡judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.