Schmidt v. St. Louis Transit Co.
| Decision Date | 08 June 1909 |
| Parties | VIRGINIA SCHMIDT, Executrix, etc., Respondent, v. ST. LOUIS TRANSIT CO., Appellant |
| Court | Missouri Court of Appeals |
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.
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 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 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 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 which inflicted the injury. However, the credibility of his evidence as to looking and listening for the car upon crossing Filmore street, was a question for the jury. He said about this time there was a car coming on the east or northbound track from the south as well, and that, in order to avoid possible dangers from the car approaching thereon, he continued on the southbound track for from one hundred to one hundred and fifty feet south of Filmore street, when, upon turning his horse and wagon to the southeast, in order to leave the southbound track, the defendant's street car from the north collided with the rear wheel of his wagon and precipitated him from his seat. This collision resulted in the injuries of which complaint is made. The city ordinance in evidence forbids the operation of street cars at the point in question to exceed the rate of fifteen miles per hour. The evidence for plaintiff tended to prove that the car was running just prior to the collision, at the rate of from twenty to twenty-five miles per hour in violation of the speed ordinance referred to. There was no testimony introduced as to the distance in which a car, running at the rate of fifteen miles per hour, might have been checked or stopped in order to avert a collision. It does appear from the testimony of defendant's motorman, however, that he first saw plaintiff's wagon while in the act of leaving the track, about fifty feet in front of the car. All of the testimony goes to the effect that upon first seeing plaintiff's wagon, the motorman immediately employed the means at hand to stop the car, and succeeded in stopping the same within eight feet after colliding with the rear wheel of the wagon. It is argued the court should have instructed a verdict for the defendant for the reason there was no evidence tending to show that the excessive speed of the car was the proximate cause of the collision and resulted in the injury to plaintiff. It is very true that the mere fact a street car is run at a greater rate of speed than is allowed by the ordinance will not authorize a recovery unless there is some evidence connecting a violation of the ordinance with the injury complained of. That is to say, the mere fact of excessive speed, without more, is not sufficient to support an action. A right of action therefore accrues to a person only when it appears that such excessive speed operates proximately to his injury. Therefore, in order to support the action, it should appear that the injury would not have occurred if the car were running at a speed within the ordinance limit. There is no presumption of law that because the car was running in violation of the ordinance, the plaintiff's injury resulted proximately therefrom. On the contrary, such is a matter of fact which must be established to a reasonable certainty by the evidence. [Bluedorn v. Railroad, 121 Mo. 258; Kelly v. Railroad, 75 Mo. 138; Jackson v. Railroad, 157 Mo. 621; Molyneux v. Railroad, 81 Mo.App. 25.] However, such fact may be proved by other collateral facts and circumstances as well as by direct and positive testimony. It is certainly not essential for a witness to testify positively that a car, running within the ordinance speed, could have been stopped so as to have averted the injury when such may be reasonably inferred from the testimony given. Although there was no direct proof in the cause to the effect that a car, running at fifteen miles an hour, could have been stopped in time to have averted a collision, a reasonable inference to that effect arises from the facts in proof. From the testimony given on behalf of plaintiff, it appears the car was running from twenty to twenty-five miles per hour; that the motorman first discovered his wagon on the track about fifty feet in front of the car; that upon applying the brakes, he succeeded in stopping the car within eight feet after having collided with the wagon. The collision, too, was with the rear wheel of the wagon, when the horse and other portions of the wagon had gotten off the track. From this, a jury might reasonably infer that had the car been running at only fifteen miles per hour and the motorman exerted the same effort to stop after apprehending the danger, the wagon would have cleared the track entirely before the point of collision was reached by the car. This proof tends with great force to show a causal connection between the violation of the speed ordinance and plaintiff's injury. The case of Stotler v. C. & A. Ry. Co., 200 Mo. 107, 135, 136, is quite in point, if any authority were needed for the proposition. See, also, Kolb v. St. Louis Transit Co., 102 Mo.App. 143, 76 S.W. 1050; Keim v. Union Ry. & Transit Co., 90 Mo. 314, 2 S.W. 427...
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