Zander v. St. Louis Transit Company
| Decision Date | 13 July 1907 |
| Parties | ZANDER, Appellant, v. ST. LOUIS TRANSIT COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.
Reversed and remanded.
Chas L. Krone and Henry A. Rosskopf for appellant.
(1) An examination of the testimony will show that substantially all of the evidence was brought by plaintiff and made in favor of his case, which, furthermore, was strengthened by nearly all of the testimony brought by defendant and impaired by none. (2) The trial court gave nineteen instructions to the jury covering ten pages of the closely printed matter of plaintiff's very largely paged abstract. This alone conceding each instruction to be correct, was enough to lead the jury into the quagmires of utter confusion. Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342. (3) The nineteen instructions given were formulated on every theory applicable or inapplicable to the case. Part of them proceeded on the doctrine that defendant was not bound to any care whatever until its servants saw plaintiff on the track, when, for the first time, its duty of ordinary care arose; part of them proceed on the theory that if plaintiff was crossing or turning out of the track, that fact alone absolutely precluded him from recovery; part of them are predicated on gratuitously assumed evidence that plaintiff was trying to cross the tracks, and "before" doing so, might have been deficient in care in his approach; part of them tell the jury that plaintiff was a competent witness in his own behalf, whose credibility was subject to the usual qualifications, and part tell the jury that his testimony had no probative force. Their perusal raises commiseration in the heart of man. They are not "a mountainous mass of inert matter" (163 Mo. 376), but a veritable Babel of incoherence. (4) Instruction 8 errs in telling the jury that the burden is on plaintiff "of proving that his injuries were solely caused by the negligence of defendant as set out in other instructions." This is not and never was the law. Plaintiffs may possibly be guilty of negligence, without which the injury to them would not have occurred, and may nevertheless recover. Baxter v. Railroad, 103 Mo. 597; Jersey Farm v. Railroad, 77 S.W. 346. (5) Instruction 9 tells the jury that the simple fact, if it was a fact, that "plaintiff was driving his wagon across or out of defendant's track to permit the car to pass," would defeat plaintiff's recovery. In other words, plaintiff's attempt to escape a collision now defeats his right, and he is now doubtless under a duty to stay where he was in order to be struck. (6) Instruction 10 tells the jury that "the fact that plaintiff says that he did look and listen, and did not see or hear the car, in the absence of proof of some obstacle to prevent his seeing or hearing, has no probative force to prove that he looked and listened, and did not see or hear the car, and such evidence does not entitle plaintiff to recover." Is it possible to conceive of anything more erroneous? Payne v. Railroad, 136 Mo. 562; Hook v. Railroad, 168 Mo. 343; Lamb v. Railroad, 147 Mo. 171.
Glendy B. Arnold for respondent; Boyle & Priest of counsel.
(1) The verdict is for the right party, and where this is so and plaintiff fails to make out a case, the judgment will be affirmed regardless of errors in the instructions. Nobel v. Blount, 77 Mo. 235; Walsh v. Exposition Assn., 101 Mo. 535. 1. There is no evidence in the record of negligent speed. Petty v. Railroad, 179 Mo. 674; Theobald v. Railroad, 191 Mo. 429. There is no evidence in the record to show in what distance the car could have been stopped running at any given rate of speed. This is fatal to plaintiff's right to recover on the speed charge. Molyneux v. Railroad, 81 Mo.App. 25; Moore v. Railroad, 176 Mo. 528; Fry v. Railroad, 111 Mo.App. 338. 2. "There is no evidence in the testimony which tends even to cast a duty upon the defendant to sound a gong at that point, it not being an intersecting street, and the presence of the wagon on the street not being known." Theobald v. Railroad, 191 Mo. 432. The evidence fails to show that the failure to sound the gong by defendant was the proximate cause of the collision. Heinzle v. Railroad, 182 Mo. 555; Frank v. Railroad, 112 Mo. 496. (2) Even though there is evidence of the negligence charged and submitted, yet it appears from all the evidence without conflict that plaintiff was guilty of negligence contributing directly to his injuries, and where this appears the rule is that the judgment for defendant will not be disturbed because erroneous instructions were given to the jury. Vogg v. Railroad, 138 Mo. 180; McGauley v. Railroad, 179 Mo. 583.
This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of defendant. The judgment was rendered at the February term, 1904, and after an ineffectual motion for a new trial the plaintiff appealed to this court. The action is for damages for personal injuries to plaintiff, a teamster, by the alleged negligence of defendant's motorman in charge of one of its street cars, in running said car into the wagon which plaintiff was driving, on the night of December 10, 1902, at a point on South Broadway, a short distance north of Bowen street. The petition in substance alleges the plaintiff was a teamster and on the night alleged was driving a lumber wagon, drawn by two horses, upon and along South Broadway east of the eastern track of defendant's railroad thereon and had reached a point north of Bowen street which intersects Broadway; that no part of his wagon was within defendant's track; that at said date the street was very muddy and in consequence the tracks were invisible at places; that the street was narrow, only about fourteen feet from the track to the sidewalk, and lined with the defendant's poles; that owing to the defective street he was compelled to drive near defendant's east rail; that he was exercising great care and caution in endeavoring to find a safe portion of said street; that while so driving a car of defendant in charge of its servants and employees was run in a careless and reckless manner and propelled at a great and unlawful speed, to-wit, twenty-five or thirty miles an hour, and without the sounding of any gong or bell or giving plaintiff any other signal, was run into plaintiff's wagon, whereby it was overturned and plaintiff thrown violently to the ground and his body entangled in the double-tree and front wheel, and his leg broken and cut, whereby he was put to great expense for medicines and medical treatment and suffered permanent and incurable injury to his damage to the sum of ten thousand dollars.
The answer was a general denial and a plea of contributory negligence in that plaintiff was driving near or on defendant's tracks in front of the approaching car and so close as to render it impossible for the motorman to stop in time to avoid the collision, and in driving upon defendant's track without looking or listening for the approach of cars or having listened or looked in failing to heed when by the exercise of reasonable care he could have avoided the collision.
Reply denied all the new matter.
For the plaintiff the evidence tended to establish the following facts: Plaintiff was a teamster, driving a lumber wagon, and was returning home in the evening of December 10, 1902. He had a skeleton lumber wagon, drawn by two horses, and between eight and nine o'clock at night arrived at a point a little north of Bowen street, on South Broadway. He was going north on the latter street slowly, on the east side, with his left or west wheels alongside of or partly within the east track of defendant's railway, which has a double track there. He had been driving along South Broadway for an hour or more before he was struck at the point last mentioned. The street along this part of his road was rough with holes and rocks in places and he was picking out the best part of the highway. He testified he was listening and looked back several times to see if any car was coming, but could not tell how often he did this, but "it was every now and then." The night was dark and cloudy and the air wet with the temperature about freezing. He was seated on his wagon and had reached a point some forty feet north of Bowen street when his wagon was struck by a car of the defendant coming up from the rear. The wagon was upset, the tongue forced through the fence to a yard on the east side of the street, one of the horses pushed into the gate there and the vehicle broken to pieces. His leg was broken and crushed, and he was long disabled and put to expense for drugs and medical attention. He was unable to work at the trial, February 15, 1904, two years after the injury, and the medical witnesses testified to the permanent character of his injuries. He testified that though he listened and looked back occasionally to watch for cars, he did not hear or see anything, and kept on driving. There was one gas lamp at the southeast corner, one at the northwest corner of Bowen street and Broadway, and another on the west side of Broadway, about seventy-five feet north. Gus Bowenschulte, Clarence Luddon and Walter Parent were standing at the southwest corner of Broadway and Bowen streets at the time of the collision. They testified that the night was dark, muddy and wet, and that Broadway around Bowen street is pretty bad, being full of holes. All of these witnesses saw plaintiff on his wagon going north on the east side of Broadway, with the left wheels of the wagon within, and the right wheels without the east rail of the northbound or east track of the...
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