Priesmeyer v. St. Louis Transit Transit Co.

REYBURN, J. (after stating the facts as above).— 1. It is contended that the imperative instruction asked at the close of plaintiff’s case and repeated at the close of the whole case should have been given, upon the theory that plaintiff introduced no proof that she looked or listened for a car while approaching or going upon the track. The testimony of the eyewitnesses established that the car was two hundred feet or more away, when the plaintiff stepped on the track, and the court was thus urged to declare as a matter of law that for a pedestrian to attempt to cross a street car track upon which a car was distant two hundred feet or more, without looking or listening for the distant car, was such contributory negligence as to bar her recovery. There is an absence of any proof that she did not look or listen, and it devolved on defendant to establish the affirmative defense of contributory negligence, if any there was. Crumpley v. Railroad, 111 Mo. 152. And in absence of such proof to the contrary, the presumption is that she was exercising at the time care and diligence. Crumpley v. Railroad, supra; Waller v. Railway, 120 Mo. 635; s. c., 164 Mo. 180. This case bears no resemblance to the Moore case relied on by appellant. Moore v. Railway, 75 S. W. 672. Plaintiff neither attempted to cross the track immediately in front of, nor in such close, proximity to a moving car, as to be struck thereby before she could cross. A pedestrian is certainly justified without imputation of negligence, in passing over a street car track in the city of St. Louis, two hundred feet ahead of a car approaching at the rate of eight miles, or even more, per hour, in plain view of the operator of the car. Shafstette v. Railroad, 74 S. W. 826. The testimony of plaintiff’s witnesses, which must be taken as true in considering the instruction by way of demurrer, tends to prove that no effort was made to control or lessen the speed of the car until it was upon plaintiff, and that the place where she fell was in plain [523] view for two hundred feet and more in the direction from which the car was arriving. The distance dividing plaintiff and the car, when she stepped on defendant’s track, was sufficient to justify the conclusion that the car could have been stopped by the proper effort before reaching the spot where plaintiff had fallen. The imperative instructions were, therefore, properly refused, and the court also properly submitted for the determination of the jury the issue whether defendant’s servant, its motorman, saw plaintiff’s peril in time to have avoided the injury by the exercise of ordinary care or by the exercise of ordinary care in watching and looking out in front of him, he could have discovered plaintiff’s peril in time to have avoided injuring her by exercise of ordinary care in stopping or checking his car. 2. Appellant next complains that the court erred in submitting to the jury, the question of whether the plaintiff was guilty of contributory negligence, assigning that as the plaintiff did not look or listen for the approaching car and no obstacle prevented her seeing it, there was no question of fact for the jury. It devolved on defendant, as already stated to establish by proper proof its plea, of contributory negligence, and there was no evidence introduced to show that plaintiff failed to look- or listen for a car, and the presumption, therefore, obtains that- plaintiff did what common prudence and ordinary care demanded of her. The instructions to the jury, read together, fairly and clearly submitted to the consideration of the jury all the issues embraced in the case, and if defendant had desired more specific definition of what constituted reasonable care than contained in the charge, it was its right to ask therefor— “mere non-direction is not error.” Feary v. O’Niel, 149 Mo. 467. Upon the record before us the case was fairly tried, and in view of the injury to plaintiff, the amount of the verdict conservative, and the judgment is affirmed. Blamd, P. J., and Góocle, J., concur.