Fleddermann v. St. Louis Transit Co.

• Citation: 134 Mo. App. 199,113 S.W. 1143
• Parties: FLEDDERMANN v. ST. LOUIS TRANSIT CO.
• Decision Date: 17 November 1908
• Court: Missouri Court of Appeals

113 S.W. 1143

134 Mo. App. 199

FLEDDERMANN v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 1, 1908.

1. STREET RAILROADS (§ 117)—INJURIES TO TRAVELER — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to the driver of a wagon, struck from the rear by defendant's street car, evidence held to require submission of defendant's negligence and plaintiff's contributory negligence to the jury.

2. NEGLIGENCE (§ 61)—PROXIMATE CAUSE— ACTS OF THIRD PERSON.

If defendant's alleged tort directly contributed to plaintiff's injury, and no negligence of plaintiff was influential in bringing it about, defendant could not escape liability for the result of its negligence, because some natural force or the activity of third persons also exerted some influence in causing the accident.

3. DAMAGES (§ 5)—PHYSICAL INJURIES—GENERAL OR SPECIAL DAMAGE.

Whether the shortening of plaintiff's limb, as the result of a street car accident, was general or special damage, depended not on whether it was a necessary sequel to the fracture, but on whether it was a necessary consequence of defendant's alleged tortious act.

4. DAMAGES (§ 142)—GENERAL AND SPECIAL DAMAGES—PLEADING.

Where plaintiff was thrown from his vehicle by a collision with a street car, and his right leg was broken near the hip as the result of the fall, damages sustained by the fact that the leg was shortened by the fracture were special, and must therefore be pleaded.

5. DAMAGES (§ 142) — SPECIAL DAMAGES — PLEADING.

A complaint for injuries, alleging that plaintiff's body was bruised, right arm fractured, and right leg broken near the hip, all of which injuries were permanent, etc., was a sufficient allegation of special damage to entitle plaintiff to recover for injuries sustained by the shortening of the leg due to the fracture.

6. DAMAGES (§ 5)—PERSONAL INJURY—GENERAL AND SPECIAL DAMAGES.

In an action for personal injury, general damages are confined largely to physical and mental suffering, and other loss, such as medical attention, nursing, loss of earnings, and diminished capacity to attend business, etc., are regarded as special damages.

7. EVIDENCE (§ 474)—EXPERTS—SPEED.

Witnesses who saw the car by which plaintiff was injured, and who testified that they had been in the habit for years of watching cars and estimating their speed, were properly allowed to testify as to the speed of the car in question.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Fred Fleddermann against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, for appellant. Scullin & Chopin, for respondent.

GOODE, J.

On the morning of October 28, 1904, at about 5 o'clock, plaintiff, while driving a wagon and team in the city of St. Louis, was run into by a trolley car of the defendant and suffered permanent injury— a broken thigh bone. Verdict went for him, and defendant appealed, not contending the damages awarded were incommensurate with the injury, but that a verdict should have been directed for defendant, because plaintiff was proved to have contributed to the accident by his own negligence, and because the proof showed the accident occurred at another place than the one stated in the petition; assigning, also, error in an instruction for plaintiff, which permitted a recovery if the jury believed the speed of the car was higher than was prudent under the circumstances, and believed, further, the excessive speed "contributed to and was the direct cause of the collision." Other complaints are that plaintiff was permitted to prove his leg had been shortened by the fracture, when this fact was not alleged for special damages, and that the court permitted two witnesses who did not qualify as experts to testify regarding the speed of the car. The accident happened near the north end of the Twelfth Street Bridge, a structure 27 feet wide and 1,200 feet long, which rises above and extends over various steam railroad tracks. The transit company operates cars over this bridge on two tracks, of which the west is used by south-bound cars and the east by north-bound. The bridge is built, in the main, of timbers, but with iron trusses. The surface of the bridge is level most of its length, but descends in a gentle slope from a point 250 feet south of its northern terminus to the street. Plaintiff was employed by the Obert Brewing Company as driver of a wagon. About daybreak he drove on the bridge at its southern end, near Gratiot street, and thence followed the east track northward until he was close to the north end, when the car overtook him, struck the rear wheel of the wagon, and knocked him from the wagon seat to the street, where he lay unconscious. The roadbed or driveway of the bridge is about 19 feet 3 inches wide. On either side is a space 2 feet 4 inches wide from the sidewalk to the first rail of the car track; the intermediate space being taken up by the two tracks, each 4 feet 10 inches wide, with a space between them of the same width. A person could hardly drive across the bridge without proceeding on one track or the other, plaintiff said, and he was traveling along the east track, the one on which cars ran northward, the way he was going. By driving on this track he avoided meeting north-bound cars, as he would have done had he used the west track.

1. Plaintiff swore that when he drove on the bridge at Gratiot street he looked and listened for cars, and neither heard nor saw any, again looked some 200 feet from where the collision occurred, and was listening all the time, but never heard the rumble of a car, or the sound of a warning gong. Some witnesses who were on the car testified they heard no warning given, though one of them swore he stepped to the front door of the car just prior to the collision and saw plaintiff's wagon plainly visible ahead. Witnesses testified the speed of the car at the time of the collision was 30 miles an hour, and that the motorman, besides giving no warning, did not slacken seed after he must have seen a collision was impending. We discern no merit in the contention that the court should have directed a verdict for defendant, either on the theory of lack of negligence on the part of defendant or concurrence of negligence on the part of plaintiff. The speed at which the car was running was excessive, if some testimony is to be believed, and there was neglect in not warning plaintiff of the car's approach, if other is to be believed. These are the acts of negligence on which a recovery was submitted. According to plaintiff's statements, he used care both in looking and listening, but nevertheless failed to detect the car's approach. His not hearing its rumble is accounted for by the noise of trains and engines switching on the tracks under the bridge, and drowning the sound of the trolley car as it came up behind. It is contended for defendant that plaintiff was in a mood of abstraction when he should have been attentive, as there was noise below which rendered it difficult to hear an approaching trolley car. The testimony of plaintiff shows he was on the watch, had looked twice to the rear for a car, and had listened constantly. He might have heard the bell if it had been rung to warn him, even though he did not hear the rumble of the car, a sound which would be confused more readily with the rumble of trains below than would the clang of the gong. In our opinion these matters were all for the jury on conflicting testimony. The cases of McGauley v. Transit Co. 179 Mo. 583, 79 S. W. 461, and Theobald v. Transit Co., 191 Mo. 395, 90 S. W. 354, cited for defendant, are not in point. We are familiar with those cases, but do not care to digest their facts in this opinion, and will say simply the plaintiffs were nonsuited for special circumstances which do not appear in the present case.

2. The instruction of which complaint is made on the authority of Hof v. Transit Co. (decided by the Supreme Court, but not yet officially reported) 111 S. W. 1166, falls outside the principle of said decision. The instruction condemned in the Hof Case allowed a verdict for the plaintiff if the defendant's negligence directly "contributed to cause the collision"; whereas the present instruction required the jury to find the negligence of defendant, as specified, not only contributed to the collision, but was the direct cause of it. This instruction, and several given for defendant, told the jury plaintiff could not recover unless they found he was in the exercise of due care at the time of the collision. The thirteenth charge for defendant said, if plaintiff's negligence in any degree directly contributed to cause his injury, he could not recover, and the verdict must be for defendant. A finding for plaintiff was excluded if his own negligence contributed to cause his injury, and he was entitled to recover if defendant's negligence directly contributed to and caused it, though some adventitious fact, not constituting negligence of plaintiff, may have had something to do with the accident. In other words, if defendant's alleged tort directly contributed to the occurrence, and no negligence of plaintiff was influential in bringing it about, his cause was good, though there was another contributing factor, perchance, the noise of trains in the valley. A defendant cannot get rid of liability for his own tort, which proximately and directly caused an injury and without which the injury would not have happened, because some natural force, or the activity of third persons, exerted an influence in causing the event. Brink v. Railroad, 17 Mo. App. 177; Sanderson v. Holland, 39 Mo. App. 233; Minster v. Railroad, 53 Mo. App. 276; Grier v. Railroad, 108 Mo. App. 565, 570, 84 S. W. 158; Nagel v. Railroad, 75 Mo. 653, 43 Am. Rep. 418; Haney v. Kansas City, 94 Mo. 334, 7 S. W. 417; Benjamin v....