Moore v. Lindell Ry. Co exempted the company from all liability for the possible loss of the mill and its appurtenances by fire resulting from the negligence of the company, or otherwise, it was held to inure to the benefit of a consolidated company which succeeded to all the rights and liabilities of the former company, including the duty of maintaining the side_track to the mill. Missouri, etc. Ry. Co. v. Carter (Tex.), 3 R. R. R. 538, 26 Am. & Eng. R. Cas., N. S., 538, 68 S. W. 159. R. MOORE v. LINDELL RY. Co. (Supreme Court of Missouri, Division No. 1, May 27, 1903.) [75 S. W. Rep. 672.] Injury to Pedestrian at Street Railway Crossing-Negligence and Contributory Negligence.* A decedent's contributory negligence in knowingly attempting to pass in front of an approaching street car at a street crossing, in such close proximity thereto as to make the danger of collision imminent, bars a recovery, though the street railway company was negligent in failing to sound the gong of the approaching car running at an excessive rate of speed, and even though it also failed to use proper care to stop the car after the dangerous position of the decedent became known to it. Appeal-Review. Where the verdict of the jury is for the right party and in accordance with the law, it will not be disturbed, though the court gave erroneous instructions. Accident at Street Railway Crossing-Contributory Negligence. Plaintiff's decedent was killed by a street car at a crossing. The street was clear of obstructions, and there was plenty of light to see distinctly. There was no evidence that decedent looked or listened before going on the track, except that of the motorman, who testified that when he saw her he hit his gong, but she continued until she got on the south-bound track; that at that time the car, which was on the north-bound track, was within probably 20 feet from her; that she paused for an instant, and when the car got within five feet of her she deliberately walked on the north-bound track in front of the car and attempted to cross, when the car killed her: held, as a matter of law, that decedent was guilty of contributory negligence. Appeal from Circuit Court, St. Louis County; Rudolph Hirzel, Judge. Action by Thomas Moore against the Lindell Railway Com'pany. From a judgment for defendant, plaintiff appeals. Affirmed. A. R. Taylor, for appellant. Geo. W. Easley and Boyle, Priest & Lehmann, for respondent. MARSHALL, J. This is an action, under the statute, to recover $5,000 damages for the death of the plaintiff's wife, on the 14th of October, 1896, caused by being run into and injured by one of the defendant's electric cars on Fourteenth street, opposite the termination of Belmont street, in the city *See foot-note appended to Barry v. Burlington Ry. & Light Co. (Iowa), 6 R. R. R. 676, 29 Am. & Eng. R. Cas., N. S., 676. Moore v. Lindell Ry. Co of St. Louis. There was a verdict and judgment for the defendant, and the plaintiff appealed. The petition charges that the plaintiff's wife was crossing Fourteenth street, "on the north crossing of Belmont street' (the evidence on both sides showed she was crossing on the south crossing), and that the car, without any warning being given of its approach by ringing the bell or otherwise, ran upon her, knocked her down, and so injured her as to cause her death. The petition assigns as further negligence that there was a city ordinance in force which required motor men and conductors to keep a vigilant watch for vehicles and persons on foot, especially children, either upon the track or moving towards it, and upon the first appearance of danger to stop the car within the shortest time and space possible, and that the defendant's motorman and conductor failed to obey the requirements of this ordinance. The petition assigns as further negligence that there was a city ordinance in force which prohibits the defendant from running its cars at a greater rate of speed than 10 miles an hour, and that the car that struck the plaintiff's wife was running at a greater rate of speed than 10 miles an hour. The petition charges that, in consideration of the grant by the city of the right to operate its cars, the defendant undertook and bound itself to observe and obey the provisions of the ordinances herein referred to. The answer is a general denial, and a plea of contributory negligence, in that the plaintiff's wife walked "upon defendant's track in front of its car, without looking or listening for an approaching car, in such proximity to the car that it was impossible to stop the car and avoid the collision and injury. The locus in quo was this: Fourteenth street runs north and south, and is 80 feet wide, and the defendant has a double track thereon, near the center of the street, the west track being used by the south-bound cars, and the east track by the north-bound cars. Belmont street is 25 feet wide, and intersects Fourteenth street on its west side. It stops at Fourteenth street. East of Fourteenth street, but not on a direct prolongation of Belmont street, there is an alley 15 feet wide. The next street south of Belmont is Spruce street, and the distance between the two is only 150 feet. The next street north of Belmont is Clark avenue, and the distance between these two is also only 150 feet. The undisputed facts in the case are that the deceased was the wife of the plaintiff; that they lived at 1411 Belmont street; that about 10 o'clock on the night of October 14, 1896, she left the house to get the plaintiff something to eat; that she went east to Fourteenth street, and then started across Fourteenth street, at the south crossing of what would be the prolongation of the south side of Belmont street; that the street was free of obstruction, and, while there were no lights at that point, there were lights at Spruce street on the south, Moore v. Lindell Ry. Co and at Clark avenue on the north; that the night was clear; that there was plenty of light there, and an approaching car could have been easily seen as far south as Spruce street and as far north as Clark avenue; that the plaintiff's wife was proceeding across Fourteenth street, going in an easterly direction, when she was injured; and that Fourteenth street, at the point of the accident, is slightly up grade. The disputed facts are as follows: The evidence on the part of the plaintiff tended to show that she was walking very slowly; that the car was running very rapidly, as much as 15 miles an hour; that no gong was sounded; that she was struck by a north-bound car just as she was about to step off the east track; that the car did not slacken its speed before it struck her; that the car was stopped at a point about 30 feet beyond the point of the accident; that a car running at the rate of six miles an hour could be stopped by means of the brakes in about 10 feet, and by using the reverse power in 3 to 4 feet; that running 8 or 10 miles an hour it could be stopped in 30 feet by using the brakes; that running 15 miles an hour it could be stopped in a car length and a half by using the reverse power. The witnesses for the plaintiff were standing at the northwest corner of Fourteenth and Spruce streets at the time of the accident. Because the car was between them and the plaintiff's wife, they did not see the car strike her. But they said when she was between the sidewalk on the west side of Fourteenth street and the railroad track the car was at Spruce street. The city ordinances pleaded were offered in evidence, and it was admitted that the defendant had accepted them. The evidence of the defendant's motorman was that he saw the plaintiff's wife when the car was about 30 feet north of Spruce street; that she was then between the curb on the west side of Fourteenth street and the south-bound car track; that the car was then running about five miles an hour; that he sounded the gong when he first saw her, and reduced the speed of the car to four miles an hour; that she continued on her way until she got to the south-bound track; that "at that time when she stepped there I was within probably perhaps 20 feet of her; she paused for an instant, and when I got within five feet of her she just deliberately walked over the track. I reversed my car, but she was too close, and it hit her. Ques. Which part of the car hit her? Ans. The east side of the car-the opposite side-she almost cleared the track. It was the fender hit her about at the ankle, and she fell down on the street." This witness testified that, if the reverse current is applied to a car going at the rate of five miles an hour on a slight grade, the car will slide 30 feet. The conductor of the car testified that the car was running about five miles an hour, and that the motorman rang the gong continuously as he approached Belmont street; that it Moore v. Lindell Ry. Co was foot bell; that the car stopped with the rear platform "alongside" of where the plaintiff's wife laid. The superintendent of the defendant testified that the car weighed eight tons, and that it would take 4 seconds to stop the car if it was running at a rate of four or five miles an hour, and that the car will slide from five to ten feet even on a slight up grade. The assistant superintendent of the City Hospital testified that when the plaintiff reached the hospital she had a contusion of the skull, and was under the influence of liquor. "She had the odor of alcohol on her breath." I. Under this state of the record, counsel for the appellant very properly says: "For the purpose of this hearing we will concede that there was evidence for the defendant tending to sustain the answer and make the issue for the jury, and we claim a reversal of the case upon the grounds herein stated" —that is, that the trial court erred in a matter of law in giving the defendant's instructions. To fully understand the case, it is necessary to set out all the instructions bearing upon the question of the liability of the defendant and the duty of the deceased that were given at the request of either the plaintiff or the defendant, and by the court of its own motion. The instructions given for the plaintiff are as follows: "(1) If the jury find from the evidence in this case that on the 13th day of October, 1896, the defendant was operating the railway and car herein mentioned, as a public conveyance, for the purpose of transporting persons for hire from one point to another, within the city of St. Louis, as a street railway; and if the jury further find from the evidence that at said time Fourteenth and Belmont streets, at the place mentioned in the evidence, were public streets within the city of St. Louis; and if the jury find from the evidence that Jennie Moore, mentioned in the evidence, was the lawful wife of the plaintiff; and if the jury find from the evidence that on the night of October 13, 1896, the plaintiff's wife, Jennie Moore, was passing over the south crossing of Belmont and Fourteenth streets, and whilst doing so the defendant's car ran against her and so injured her that she died from said injuries; and if the jury find from the evidence that said car was, by the defendant's servants in charge of same, being run at a greater rate of speed than 10 miles per hour at said time; and if the jury further find from the evidence that such excessive rate of speed, over 10 miles per hour, directly contributed to cause said car to so strike and injure plaintiff's said wife; and if the jury further find from the evidence that plaintiff's wife. exercised ordinary care to look and listen for an approaching car while going upon and over defendant's track-then plaintiff is entitled to recover. (2) If the jury find from the evidence that on the 13th day of October, 1896, the defendant was operating the railway and car, mentioned in the evidence, for the purpose of transporting persons for hire from one point to another within the city of St. Louis, as a street rail 8 RRR-4 Moore v. Lindell Ry. Co way; and if the jury find from the evidence that at said time. Fourteenth and Belmont streets were public streets, within the city of St. Louis, at the place mentioned in the evidence; and if the jury further find from the evidence that on the night of said day the plaintiff's wife, Jennie Moore, was on the south crossing of said streets, passing from the west side of Fourteenth street to the east side thereof across defendant's tracks; and if the jury further find from the evidence that, as the plaintiff's wife moved towards and across defendant's tracks, defendant's motorman saw her; and if the jury further find from the evidence that as plaintiff's wife approached and went upon defendant's track she was in danger of being injured by defendant's north-bound car; and if the jury further find from the evidence that defendant's motorman on the north-bound car saw, or by keeping a vigilant watch could have seen, that the plaintiff's wife, as she approached and went upon defendant's north-bound track, was in danger of injury from said car, and therefore could have averted injury to plaintiff's wife by stopping said car within the shortest time and space possible, and neglected to do so then plaintiff is entitled to recover five thousand dollars. (3) If the jury find from the evidence that, as the defendant's car, moving northward, approached the south crossing of Belmont street, the plaintiff's wife was passing over said crossing; and if the jury further find from the evidence that said crossing was a public crossing for pedestrians; and if the jury further find from the evidence that as plaintiff's wife was so passing over said crossing she was struck and injured by defendant's north-bound car so that she died from said injuries; and if the jury further find from the evidence that as said car approached said crossing defendant's servants in charge of the car failed to give any signal, by bell or otherwise, of the approach of said car to said crossing; and if the jury further find from the evidence that said failure to give said signal directly contributed to cause the injury and death of plaintiff's wife; and if the jury find from the evidence that plaintiff's wife was exercising ordinary care whilst approaching and passing over said track-then plaintiff is entitled to recover five thousand dollars; provided the jury believe from the evidence that such failure to give such signal was negligence on the part of the servants of the defendant. (4) By the term 'ordinary care,' as used in the instructions, is meant that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. A failure to exercise ordinary care as thus defined would be negligence. (5) The court instructs the jury that if they find from the evidence that the deceased, Jennie Moore, did see approach of defendant's car before it struck and injured her, yet if said car was distant from her a sufficient distance to have enabled her to cross the track ahead of the car in safety |