Madinger v. St. Joseph Railway, Light, Heat & Power Co.

BROADDUS, P. J.

The plaintiff’s action is to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant in operating one of its street cars in the city of St. Joseph. He was struck by one of defendant’s cars at the intersec tion of Jules and Sixteenth streets in said city. Jules street' extends east and west through the city on which defendant operates a doable track street railway. The east bound cars travel on the south track and the west on the north track. Jules street intersects Sixteenth street. From Sixteenth street at the intersection east to Eighteenth street is up grade, and south of that point it is also up grade.

On 23d day of October, 1909, plaintiff while driving a two horse delivery wagon on Sixteenth street, approached Jules street for the purpose of crossing over the defendant’s tracks. About the time he approached it one of the defendant’s east-bound cars crossed and stopped on the east side of Sixteenth street for the purpose of discharging passengers. As the car passed plaintiff stopped his horses about fifty feet south of the south track and looked east for an approaching car. At this point as testified to by plaintiff his view east on Jules street was obstructed by the porch of a house which stood on the southeast corner of the two streets. There was a porch on the north end of the house fronting on Jules street within about eight feet of the property line and plaintiff could not see further east on Jules street than to an alley running north between Sixteenth and Seventeenth streets, at which time he saw no car approaching from the east. He then started up his horses into a trot, and passed directly behind the east-bound car, then stationary and was struck as he emerged from the rear by a west-bound car. Just a moment before he was struck the motorman on the car screamed to him.

He testified that after he stopped as above stated where his view was obstructed, he did not look again for a car that might be approaching from the east; that ■Jules street was unobstructed after he passed from said porch and that there was nothing to further obstruct his view to the east and that he could have seen a car coming for a distance of two blocks or more. The sidewalk was about twelve feet wide and that Jules street •was thirty-six feet wide from curb to curb. All the testimony showed that after he came within about forty feet of the track his view to the east was unobstructed and that he could have seen a car coining two blocks distant. Plaintiff and other witnesses testified that they heard no sounding of the gong by the motorman as his car approached the crossing.- There was evidence that the car was going at an unusual rapid rate of speed, but just hoAv fast no one was able to state. The ordinance of the city prescribed a rate of speed not exceeding ten miles an hour.

On the undisputed evidence of the plaintiff the court directed a‘verdict for the defendant and he appealed.

The petition is not copied in the record, only a synopsis is given, from which we gather that the action is based upon a violation of the city ordinance regulating the speed of cars operated within its limits. As there Avas no satisfactory proof that the car was being-operated at the time at a greater rate of speed than permitted by the ordinance, it seems to us that plaintiff has but little ground to stand upon on his appeal.

But treating the case as if there was such proof aato still do not see the plaintiff was entitled to* recover. It is said that: “In an action for damages caused by collision of plaintiff’s horse with a street car, where the evidence of plaintiff’s'driver showed that if he had waited but a moment until an obstructing car moved out of his line of vision, he could have seen an approaching car Avhich caused the injury in time to have avoided it, but failed to wait, he Avas guilty of contributory negligence as a matter of law. NotAvithstanding the motorman was guilty of negligence in failing to give a warning signal of the approach of his car.” [Asphalt Co. v. Transit Co., 102 Mo. App. 469.]

“A pedestrian who steps on a car track without looking to see if a car is approaching thereon, and is struck by such a car is guilty of such contributory negligence as bars his right to recover for the consequent injuries, notwithstanding the car approached the crossing without sounding the hell as the rules of the company required, and as he had observed was the custom.” [Giardina v. Railroad, 185 Mo. 380.] And so we find the law stated in Hebeler v. Metropolitan Street Ry. Co., 132 Mo. App. 551. There are many other cases to the same effect which it is unnecessary to mention.

We have examined plaintiff’s authorities but they have no application. There can be but one correct view taken of the case, the one adopted by the trial court. Affirmed.

All concur.