Fanning v. St. Louis Transit Co.

Missouri Court of Appeals

Fanning v. St. Louis Transit Co.

78 S.W. 62, 103 Mo. App. 151, 1903 Mo. App. LEXIS 280

CourtMissouri Court of Appeals

DecidedApril 28, 1903

StatusPublished

Cited by2 cases

This text of 78 S.W. 62 (Fanning v. St. Louis Transit Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Fanning v. St. Louis Transit Co., 78 S.W. 62, 103 Mo. App. 151, 1903 Mo. App. LEXIS 280 (Mo. Ct. App. 1903).

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Opinion

BLAND, P. J.

(after stating the facts as above). —1. Defendant, as is usual in this class of cases, offered peremptory instructions at the close of plaintiff’s evidence an.d again at the close of all the evidence, that under the evidence plaintiff could not reoover, which instructions the court refused.

Plaintiff testified that her attention was called to the car by the explosion of the torpedo; that she was then fifteen or twenty feet from the crossing, and the -ear was two hundred feet east of her; that without paying any further attention to the car she walked on the crossing, turned south and proceeded to go across the track and did not notice the car until she was in the middle of the track, when the car was close upon her running at a rapid speed. It seems to us that, having seen the car two hundred feet away, ordinary prudence would have dictated to plaintiff, before proceeding across the [158]*158track, to look and ascertain whether or not she had time to cross in safety, and that by her own evidence she convicts herself of negligence. Kelsay v. Railway, 129 Mo. l. c. 372; Holwerson v. Railway, 157 Mo. 216, and cases cited. Conceding, then, that defendant’s motorman was guilty of negligence, in running the car at a prohibited rate of speed, the fact remains that plaintiff was likewise guilty of negligence, concurrent with the negligence of the motorman, and that the injury was the result of the concurrent negligence of both. In such circumstances the law is well settled, here and elsewhere that plaintiff is not entitled to recover. Turner v. Railroad, 74 Mo. 602; Powell v. Railroad, 76 Mo. 80; Butts v. Railway, 98 Mo. 272; Boyd v. Railway, 105 Mo. 371; Kreis v. Railway, 148 Mo. 321; Murphy v. Railway, 153 Mo. l. c. 262; Smith v. Railway Co., 52 Mo. App. 36; Jones v. Barnard, 63 Mo. App. 501; Lien v. Railway Co., 79 Mo. App. 475; Skipton v. Railway, 82 Mo. App. l. c. 143; Killian v. Railway, 86 Mo. App. 473; Gahagan v. Railroad, 55 L. R. A. (N. H.) 426, and note.

We conclude thei defendant’s instruction in the nature of a demurrer to plaintiff’s evidence should have been given, and reverse the judgment.

Beyburn and Goode, JJ., concur.

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BLAND, P. J.

(after stating the facts as above). —1. Defendant, as is usual in this class of cases, offered peremptory instructions at the close of plaintiff’s evidence an.d again at the close of all the evidence, that under the evidence plaintiff could not reoover, which instructions the court refused.

Plaintiff testified that her attention was called to the car by the explosion of the torpedo; that she was then fifteen or twenty feet from the crossing, and the -ear was two hundred feet east of her; that without paying any further attention to the car she walked on the crossing, turned south and proceeded to go across the track and did not notice the car until she was in the middle of the track, when the car was close upon her running at a rapid speed. It seems to us that, having seen the car two hundred feet away, ordinary prudence would have dictated to plaintiff, before proceeding across the [158]*158track, to look and ascertain whether or not she had time to cross in safety, and that by her own evidence she convicts herself of negligence. Kelsay v. Railway, 129 Mo. l. c. 372; Holwerson v. Railway, 157 Mo. 216, and cases cited. Conceding, then, that defendant’s motorman was guilty of negligence, in running the car at a prohibited rate of speed, the fact remains that plaintiff was likewise guilty of negligence, concurrent with the negligence of the motorman, and that the injury was the result of the concurrent negligence of both. In such circumstances the law is well settled, here and elsewhere that plaintiff is not entitled to recover. Turner v. Railroad, 74 Mo. 602; Powell v. Railroad, 76 Mo. 80; Butts v. Railway, 98 Mo. 272; Boyd v. Railway, 105 Mo. 371; Kreis v. Railway, 148 Mo. 321; Murphy v. Railway, 153 Mo. l. c. 262; Smith v. Railway Co., 52 Mo. App. 36; Jones v. Barnard, 63 Mo. App. 501; Lien v. Railway Co., 79 Mo. App. 475; Skipton v. Railway, 82 Mo. App. l. c. 143; Killian v. Railway, 86 Mo. App. 473; Gahagan v. Railroad, 55 L. R. A. (N. H.) 426, and note.

We conclude thei defendant’s instruction in the nature of a demurrer to plaintiff’s evidence should have been given, and reverse the judgment.

Beyburn and Goode, JJ., concur.

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78 S.W. 62, 103 Mo. App. 151, 1903 Mo. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fanning-v-st-louis-transit-co-moctapp-1903.

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