120 S.W. 96 (Mo.App. 1909), Schmidt v. St. Louis Transit Co.

Citation:120 S.W. 96, 140 Mo.App. 182
Opinion Judge:NORTONI, J.
Party Name:VIRGINIA SCHMIDT, Executrix, etc., Respondent, v. ST. LOUIS TRANSIT CO., Appellant
Attorney:Boyle & Priest and Glendy B. Arnold for appellant. Joseph A. Wright and Edward W. Foristel for respondent.
Judge Panel:NORTONI, J. Reynolds, P. J., and Goode, J., concur.
Case Date:June 08, 1909
Court:Court of Appeals of Missouri
 
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120 S.W. 96 (Mo.App. 1909)

140 Mo.App. 182

VIRGINIA SCHMIDT, Executrix, etc., Respondent,

v.

ST. LOUIS TRANSIT CO., Appellant

Court of Appeals of Missouri, St. Louis

June 8, 1909

Appeal from St. Louis City Circuit Court.--Hon. Dan'l D. Fisher, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Boyle & Priest and Glendy B. Arnold for appellant.

(1) The court erred in overruling defendant's challenge of juror, Elsworth Lyons. Billmeyer v. Transit Co., 108 Mo.App. 6; Theobald v. Transit Co., 191 Mo. 395. (2) The court erred in not sustaining defendant's demurrer to the evidence, because there is no evidence tending to show negligent speed of the car, or, if the speed was negligent, that it was the proximate cause of the collision. Molyneaux v. Railroad, 81 Mo.App. 25; Bluedorn v. Railroad, 121 Mo. 258; Jackson v. Railroad, 157 Mo. 621. (3) Plaintiff's first instruction is erroneous because it authorizes a recovery if the jury believe from the evidence that the speed at which the car was traveling merely contributed directly to cause the collision. (4) The verdict of the jury is the result of passion and prejudice, and against the overwhelming weight of the evidence. Mitchell v. Railroad, 102 S.W. 661.

Joseph A. Wright and Edward W. Foristel for respondent.

(1) Respondent (plaintiff) having peremptorily challenged juror Lyons, defendant cannot complain. Thompson and Merriam on Juries, sec. 276, subsec. 3, p. 308. (2) With the testimony tending to prove excessive speed, it was properly left to the jury to determine whether such excessive speed caused the injury. Stotler v. Railroad, 200 Mo. 107; Sluder v. Transit Co., 189 Mo. 107; Weber v. Railroad, 100 Mo. 194; Kolb v. Transit Co., 102 Mo.App. 143; Campbell v. Transit Co., 121 Mo.App. 406; Meyers v. Transit Co., 99 Mo.App. 363. (3) It is sufficient that the negligent act directly contributed to cause the injury. Harrison v. Electric Light Co., 195 Mo. 606; Newcomb v. Railroad, 169 Mo. 409; Brash v. St. Louis, 161 Mo. 433; Campbell v. Transit Co., 121 Mo.App. 406.

NORTONI, J. Reynolds, P. J., and Goode, J., concur.

OPINION

[140 Mo.App. 184] NORTONI, J.

This is an action for damages alleged to have accrued to Joseph Schmidt, now deceased, for personal injuries inflicted upon him by defendant's street car. Plaintiff recovered and the defendant prosecutes the appeal. After trial and judgment in the circuit court, Joseph Schmidt departed this life and the cause now stands revived in the name of Virginia Schmidt, his executrix. For convenience, we will refer to Joseph Schmidt, now deceased, as the plaintiff.

It appears the plaintiff was seated in a one-horse wagon and had been driving south on the defendant's southbound track about sixty hundred south Broadway in the city of St. Louis, when the defendant's southbound car collided with the rear wheel of his wagon [140 Mo.App. 185] and inflicted the injuries complained of. At the time of the collision he was in the act of driving to the southeast from the car track; in fact, the horse and forepart of the wagon were then off the track, and the car collided with the rear wheel only.

There are two specifications of negligence relied upon in the petition for recovery. The first is the alleged violation of what is known as the vigilant watch ordinance, and the second is an alleged violation of the

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speed ordinance of the city of St. Louis, which ordinance forbids the operation of street cars at the point in question to exceed fifteen miles per hour. The evidence being insufficient to support the allegation under the vigilant watch ordinance, the court referred the case to the jury on the specification of negligence arising under the speed ordinance only. The evidence on the part of plaintiff tended to prove that he was driving south on the west side of Broadway when his progress was interrupted because of the fact that certain portions of the surface of the street had been removed in making repairs. Thereupon he turned upon defendant's southbound track and continued his journey southward. The defendant maintains and operates two street car tracks on Broadway near the center of the street. The track farthest west is occupied by south-bound cars, while the track farthest east is occupied by the northbound cars. Plaintiff testified that he looked to the rear and listened for a car at the time of driving upon the track. This was about two hundred and fifty feet north of the point where he was afterwards overtaken and injured. Not seeing or hearing a car at the time mentioned, he continued driving southward for about two hundred and fifty feet. Upon crossing Filmore street, he looked to the rear and listened a second time and neither saw nor heard a car approaching. The time of the year was October, and it was after six o'clock in the evening. It was dusk, or between daylight and darkness. Plaintiff said he could [140 Mo.App. 186] see from seventy-five to one hundred feet ahead of him. As he had a view for at least three blocks to the north at the time he looked and listened at Filmore street, it is remarkable indeed that he did not observe the approaching car...

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