The only alternative, after the conclusion reached, is to set aside the verdict.
The verdict and judgment are reversed, annulled and avoided.
The demand of plaintiff is rejected and his action dismissed at his cost in both courts.[[219]]
HUTCHINSON v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY
St. Louis Court of Appeals, Missouri, April 9, 1901.
Reported in 88 Missouri Appeal Reports, 376.
Appeal from St. Louis City Circuit Court.
Plaintiff (respondent) was injured while driving on the track of the street railroad at the crossing of two streets. The car collided with the rear of his wagon. Plaintiff testified that he had been driving for some three hundred yards with the left wheels of his wagon inside the north rail. Defendant’s (appellant’s) testimony tended to prove that plaintiff did not drive on the track until he had either reached or was near the crossing, and that he then turned and drove onto the track, when the motor car coming up from behind collided with the rear of his wagon.
What is undisputed is, that he did not look back to see if a car was coming before attempting to cross, nor, according to his own testimony, after he drove onto the track three hundred yards or more to the east. He drove very slowly. There was testimony tending to show the motorneer in charge of the car was watching a train on the railroad just south of Manchester avenue, which inattention prevented him from observing plaintiff’s perilous position until the car was within twenty or thirty feet of the wagon. He was required by a city ordinance, to be watching the track.
The evidence as to the warning of the car’s approach was conflicting.
The plaintiff was entitled to the use of the entire street, and, therefore, was not a trespasser, while the defendant was entitled to the right of way.
Failure to signal the car’s approach was omitted from the instructions. The only ground of recovery submitted to the jury was alleged negligence of the defendant’s motorneer in not using ordinary care to avoid injuring plaintiff after he knew, or by the proper care might have known, the latter was in a dangerous position. One instruction was given that plaintiff was guilty of contributory negligence if he failed to look back at reasonable intervals to see if a car was coming and to get off the track if he saw one. This was practically telling them he was actually negligent, for he admitted he did not look back.