Hamm v. United Railways Co. , 184 Mo. App. 5 ( 1914 )

REYNOLDS, P. J.

Plaintiff, injured in his person and property by being run into by a street car on a line operated by the United Railways Company, brought his action for damages.

The negligence charged is excessive speed, in violation of what is known as the “speed ordinance” of the city of St. Louis, which limits the speed in the district in which the accident occurred to ten miles per hour, and the violation of another ordinance of the city, known as the “vigilant watch” ordinance, it being charged under this latter assignment that defendant’s employees in charge of the car had failed to stop the car in the shortest time and space possible upon the first appearance of danger to plaintiff, and were negligent in failing to use ordinary care to stop the car after they saw plaintiff in a position of danger, and after those employees could, by the exercise of ordinary care and vigilance, have seen that plaintiff was in a position of danger and was liable to be struck by the car. Setting out the injuries sustained to his person and to his buggy, and the expenditures he had been put to, plaintiff demanded judgment in the sum of $7500'.

The answer, after a general denial, pleaded contributory negligence on the part of defendant.

At the conclusion of the testimony for plaintiff, defendant interposed a demurrer to the evidence and that being overruled, introducing' no evidence, defendant stood upon its demurrer. There was a verdict for plaintiff in the sum of $4232, judgment following. From this defendant has duly perfected its appeal to this court, having interposed a motion for a new trial and saved exception to that being overruled.

On careful consideration of the evidence in this case, we have concluded that the demurrer to the evidence should have been sustained.

Plaintiff, in support of his case, introducing the ordinances of the city referred to, produced two eyewitnesses to the accident, and these, in addition to himself, are the only witnesses testifying to that, the other witnesses testifying as to the locality, measurements of the streets, etc., and the extent of the injuries and damages sustained by plaintiff. Learned counsel for appellant have summarized the testimony so succinctly that we accept it, making a few additions.

The accident occurred in the city of St. Louis, at the intersection of Twentieth street and Washington avenue. Plaintiff was driving south on Twentieth, which at this point has considerable incline from the north toward Washington avenue, in a one-horse buggy, between 10 and 10:30 o’clock in the night. The night was clear and the street well lighted at this point. There is a building on the northeast corner of Washington and Twentieth, extending to the building line and obstructing any view to the east along Washington avenue until that building line is passed. As plaintiff, driving south on Twentieth street, attempted to pass over the tracks of the defendant company along Washington avenue, his horse and buggy were struck by a westbound car operated by defendant and running on the north track, and he was thrown to the ground.

A witness, Mr. Robinson (not Mr. Mengis, as mistakenly stated by counsel), testifying in behalf of plaintiff, said that'he saw plaintiff “just as his horse was just north of the westbound track.” The horse was apparently standing still. He saw plaintiff endeavor to urge the horse over by slapping him on the back with the reins. The car at that time was eighty feet east of the point of collision, going at the rate of twenty or twenty-five miles an hour, and struck the buggy somewhere near the rear wheels.

Another witness, Mr. Albright, also called by plaintiff, testified that he was standing on the front platform of the car which struck plaintiff. He first saw plaintiff emerging from the building line at Twentieth street when the car was at Nineteenth street, Nineteenth street being the nest street east of Twentieth, and there being considerable fall from Nineteenth to Twentieth. When the car was three-fourths of a block or approximately 3001 feet from the point of contact, the horse’s head was just two feet north of the westbound, or north, track. When he again saw the horse and buggy, the front wheels were about on the track and the car was then eighty feet away from the point of contact. This witness further testified that the motorman did nothing to arrest the progress of the car until about at the point of contact when the fuse blew out and the car skidded westward along the rails.

These were the only eyewitnesses testifying to the accident, apart from plaintiff himself.

As a witness in his own behalf, plaintiff testified that he was driving south on Twentieth street, toward Washington avenue, late in the evening, going to Union Station, which is south of Washington avenue. His horse was going in a jog trot, going, as he said, “about seven of eight miles per hour.” As he approached Washington avenue he looked east and saw the car was at Nineteenth street, coming toward Twentieth street. He paid no more attention to the car, thinking that he had sufficient time to cross in safety, hut kept on driving’ toward the track. When he next looked at the car, and before entering upon the track, he saw that the car was right upon him, coming at a high rate of speed. He tried to stop his horse but was unable to do so and to extricate himself from peril attempted to urge the horse across in front of the car. The car, however, struck his buggy, threw him to the street and caused him to sustain various injuries to his person, which, it appears were of a serious character. His buggy was also damaged.

A witness for plaintiff testified that a car going twenty miles an hour could be stopped in from fifty to seventy-five feet; going thirty miles an hour in 100 feet.

Such, in substance, is the statement of counsel for appellant, and as said, we find it substantially accurate. We may add from our own reading of the evidence that it appeared from the testimony of a civil engineer, a Mr. Mengis, called by plaintiff, that Twentieth street at the point of the accident is a sixty-foot street, with twelve-foot sidewalks, making the roadway thirty-six feet wide. Washington avenue is an eighty-foot street, with fifteen-foot sidewalks, leaving a fifty-foot roadway. The distance between the two rails of each track of the railroad is between three and a half and four feet. The distance between the south rail of the north track and the north rail of the south track is about five feet. The westbound cars on the Washington avenue line of the defendant railway run on the north track, so that it appears that from the building line to the north rail of the north or westbound track, the distance is thirty-four feet.

The Wrought Iron Range Company occupies the block between Nineteenth and Twentieth streets on the north side of Washington avenne and the structure comes out to the building line. A person after clearing the building can see east along Washington avenue, to Eighteenth and west several blocks. Plaintiff repeats several times that he was traveling at “a regular short trot, ” ‘ ‘ about seven or eight miles an hour. ’ ’ He saw the car just as it was crossing Nineteenth street and coming west and toward Mm. When right close to the track he noticed that the ear was coming fast, “faster as I expected the car was coming.When he first saw the car he let the horse go as it had been going before, at a regular slow trot; thought he had plenty of time and did not pay much attention to the car because when he first saw it, it was so far away. When he came near the track he looked up and saw that the car was coming so fast and so near him that he tried to check up the horse; first tried to pull back and then hurried the horse up to get over; “that is the last I know of it,” said plaintiff.

Accepting plaintiff’s own account of the accident, it is very clear that his horse was going at a sharp trpt, for seven or eight miles an hour is a sharp trot, when we consider that a horse in walking covers about four miles an hour. That, as we are informed, is the regulation gait of seasoned calvary horses in the service of the United States Army. So plaintiff was driving toward a known danger, a street railroad track, especially dangerous to his observation at the time, for he saw a car coming down grade and only a block away; driving at a trot; going at almost double the speed of a horse when walking — going at a rate which made it impossible for him to stop, 'and without any attempt to check up, or look east again until he was at or on the track. As it appears to us, when he then tried to check up, in the immediate face of danger, for he was then on the track, he did the very thing that resulted disastrously, but he had invited the disaster by reckless driving to that point. Evidently in a panic, lie tried to check up or turn his horse when too late. Beyond doubt the car was going at an unlawful rate of speed. Even at that, plaintiff would not have been injured but for his own failure to look a second time, when he had a clear space of thirty-four feet over which to travel from the building line to the track, over which he continued toward the track, itself a sign of danger, with a car moving along it, as he knew, at so sharp a trot that he could not stop his horse.

“A violation of a municipal ordinance or of a statute is ordinarily negligence on the part of the railroad company, but the violation of an ordinance or a statute does not relieve the traveler from the duty which the law imposes upon him.” [3 Elliott on Railroads (2 Ed.), p. 349, sec. 1165.]

We are unable to escape from the conviction in this case that, according to his own testimony, this plaintiff took the chance of crossing the tracks before the car could reach him. This is not the case of one traveling at a walk but of one driving a horse at a trot. One cannot stop a horse going at a trot as quickly as he can check one walking. The driver must not approach a dangerous spot recklessly or heedlessly. [3 Elliott on Railroads (2 Ed.), secs. 1164 to 1166.]

With all sympathy for the suffering and loss of plaintiff, we are compelled to hold, as a matter of law, on the authority of the decisions of our Supreme Court in Kelsay v. Missouri Pac. Ry. Co., 129 Mo. 362, 1. c. 372, 30 S. W. 339, and Mockowik v. Kansas City, St. J. & C. B. R. R. Co., 196 Mo. 550, 94 S. W. 256, and of the Courts of Appeals in Schaub v. Kansas City Southern Ry. Co., 133 M6. App. 444, 113 S. W. 1163; Dey v. United Railways Co., 140 Mo. App. 461, 1. c. 473, 120 S. W. 134, and Paul v. United Railways Co., 152 Mo. App. 577, 134 S. W. 3, that plaintiff cannot recover. This, in brief, for these reasons: First, he drove his horse into a place of danger and at such a rate of speed as prevented him from averting the accident after he saw, or, by tbe exercise of proper care, could have seen, that an accident was imminent; second, because he knowingly assumed the risk of getting across the track in safety. Under these facts he cannot recover. Unlike the facts in Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S. W. 78, the evidence on which we hold plaintiff, as a matter of law, guilty of contributory negligence, is not contradictory. But one inference can be drawn from it, and that is the contributory negligence of plaintiff.

It is said that the motorman saw the danger of plaintiff and was bound to slacken up, invoking the humanitarian rule. The answer is, that plaintiff’s own negligence caused him to enter into the danger zone too late for the motorman to have saved him by taking-measures necessary to that end. [Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 1. c. 672, 138 S. W. 23; Taylor v. Metropolitan St. Ry. Co., 256 Mo. 191, 165 S. W. 327, 1. c. 333,]

The judgment of the circuit court should be reversed. Nortoni, J., concurs. Allen, Jdissents in a separate opinion, and as he deems the decision herein to be contrary to the previous decisions of the Supreme Court in Strauchon v. Metropolitan St. Ry. Co.., 232 Mo. 587, 135 S. W. 14; Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 138 S. W. 23; and Waddell v. Metropolitan St. Ry. Co., 213 Mo. 8, 112 S. W. 50, as well as to other decisions of that court, he asks that the case be certified to the Supreme Court, which is accordingly done.