Home/Missouri Court of Appeals/Sims v. St. Louis & Suburban Railway Co.

Sims v. St. Louis & Suburban Railway Co.

92 S.W. 909, 116 Mo. App. 572, 1906 Mo. App. LEXIS 169
CourtMissouri Court of Appeals
DecidedFebruary 13, 1906
StatusPublished
Cited by1 cases

This text of 92 S.W. 909 (Sims v. St. Louis & Suburban Railway 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.

Bluebook
Sims v. St. Louis & Suburban Railway Co., 92 S.W. 909, 116 Mo. App. 572, 1906 Mo. App. LEXIS 169 (Mo. Ct. App. 1906).

Opinion

BLAND, P. J.

Tbe action is to recover damages to property and for personal injuries, alleged to have been caused by defendant’s negligence in running its car against tbe plaintiff’s wagon. Tbe specific charges of negligence were, first, running its car at a high and unlawful rate of speed, to-wit, thirty miles an hour; second, failure to ring a bell or give any warning of tbe car’s approach; third, failure to stop tbe car after tbe defendant’s motorman saw or, by tbe exercise of ordinary care, could have seen plaintiff’s wagon crossing its track in ample time to have stopped tbe car and prevented tbe collision.

Tbe answer was a general denial and a plea of contributory negligence on tbe part of tbe plaintiff in carelessly failing to look and listen for a car.

Tbe reply denied all new matter in tbe answer.

Tbe trial resulted in a verdict for plaintiff for $1,200. A motion for new trial was moved and over[575]*575ruled aud judgment was entered on the verdict. Defendant appealed.

The evidence shows that about one o’clock in the morning of August 15, 1900, plaintiff was driving eastwardly along Easton avenue, in the city of St. Louis. Plaintiff testified that as he approached the point where the tracks of the defendant railway company cross said Easton avenue, he was driving about three or four feet from the south curb of the street; that the street was rough and his wagon was loaded with farm products ; that he looked both ways, north and south, for a car while his horses were traveling toward the track; that there were double tracks running north and south and he was looking south when his wagon entered the west or south-bound track, and as he turned to' look north, he saw the car that struck him just about the building line on the north side of Easton avenue, coming at a very high rate of speed; that he was scared and did not have time to jump before his wagon was struck with such terrific force as to throw him about forty feet from the wagon and against a post; that a shoe of one of his horses was jerked off and his wagon “smashed up;” that the wagon was struck almost immediately on the brake and hub of the hind wheel, the horses being on the east track; that by the force of the fall against the post, two of his ribs and his collar bone were broken and that he had not fully recovered from his injuries; that one of his horses was made seriously lame and his wagon ruined. Plaintiff also testified that he did not hear the car or gong until he got on the south track, and that his sight and hearing were good. Plaintiff’s evidence and the evidence of his witnesses, is that the car was running at a speed of from twenty-five to thirty miles an hour and that the gong was not sounded until within a few feet of the wagon.

Plaintiff employed and assisted Edgar Rapp, a surveyor, to survey and make a plat of the crossing and surroundings. The plat sufficiently exhibits the physi[576]*576cal facts and we insert it here (in condensed form) for the reason they are important in view of the fact that on them and the plaintiff’s own evidence, the defendant rests its contention that the court should have given its instruction in the nature of a demurrer to plaintiff’s evidence, asked at the close of his evidence and again at the close of all the evidence.

On the plat are two stars (A and B) indicating two positions of plaintiff’s wagon as he drove on the crossing and the distance from these points (11 and 14 feet, respectively) to the outside rail of defendant’s tracks. The dotted lines running north from these two points show the line of vision and the distance on defendant’s tracks where a car could have been seen. From point B a car could have been seen one hundred and eighty feet north, and from point A two hundred and twenty-nine feet Rapp testified that point A represented, by actual test, the'distance a man would be, seated on a wagon, when his horses’ heads would be over the west rail of the track, and point B the distance before his horses’ heads had quite reached the track. Plaintiff testified that from point A, looking north on the track, there was no obstruction and a car could be seen two hundred and twenty-nine feet and from point B á car could be seen one hundred and eighty-one feet to the north; that, ordinarily, a car could be heard one hundred and fifty feet, and the gong, if sounded, three hun- • dred feet. Plaintiff described his approach to the tracks as follows: “As I approached the Suburban track I was going slow, from the fact the bulk of my load was on top of the wagon, and tomatoes are very heavy, and I always had a horror in passing there, and I looked first one way and then another, and I heard no car and seen none until my horse was partially across the track, or I was just on the track, and I seen the car, I think, an instant before I heard the gong, and the man hallooed and I threw up my hands, and I thought I was going to be killed; just hadn’t time to jump or do anything.” Plain[578]*578tiff further testified that he was looking south for cars, and after he saw the car coming from the north it did not seem to him it was any time, that could he reckoned in minutes, before his wagon was struck; that he kept looking, was turning his head from the south to the north, and then saw the car.

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Cite This Page — Counsel Stack

Bluebook (online)
92 S.W. 909, 116 Mo. App. 572, 1906 Mo. App. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-st-louis-suburban-railway-co-moctapp-1906.