135 S.W. 98 (Mo.App. 1911), Kirchof v. United Raiways Company of St. Louis

Citation:135 S.W. 98, 155 Mo.App. 70
Opinion Judge:CAULFIELD, J.
Attorney:Glendy B. Arnold for appellant; Boyle & Priest of counsel. Richard A. Jones for respondent.
Judge Panel:CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.
Case Date:January 24, 1911
Court:Court of Appeals of Missouri

Page 98

135 S.W. 98 (Mo.App. 1911)

155 Mo.App. 70

JOHANN D. KIRCHOF, Respondent,



Court of Appeals of Missouri, St. Louis

January 24, 1911

Page 99

[Copyrighted Material Omitted]

Page 100

Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.


STATEMENT.--This is an action to recover damages for personal injuries alleged to have been caused by the negligence of defendant. The injury complained of occurred September 11, 1908, on Easton avenue, between Sarah street and Warne avenue, in the city of St. Louis. Easton avenue is a public street and thoroughfare, greatly given to vehicle and street car traffic. A double track street railway line is operated by defendant along the middle of it, running east and west. The south track is used by east-bound cars, one of which inflicted the injury. As acts of negligence, the petition charges that "on or about the 11th day of September, 1908, plaintiff was driving a team of horses attached to a wagon eastwardly on said Easton avenue between Warne and Sarah streets where defendant maintained its railways and operated cars thereon as aforesaid, and drove upon the south track of defendant's said railway in order to pass a wagon standing on said street and while a portion of the wagon being so driven by plaintiff as aforesaid was upon or over the tracks of defendant's street railway, the motorman of defendant in charge of one of its east-bound cars operated by defendant on said railway carelessly and negligently and without using ordinary care to control or stop said car, caused and suffered the same to strike said wagon upon which plaintiff was driving as aforesaid whereby he was thrown therefrom to the street and suffered the injuries hereafter stated."

The "Vigilant Watch Ordinance" was also pleaded and a violation of the duties imposed by it upon the defendant is charged. After pleading that the "violation of said ordinance and the negligent acts of defendant's motorman as aforesaid directly contributed to cause said car to strike said wagon and to the injury of the plaintiff as hereafter stated," the petition describes plaintiff's injuries in detail substantially as they were shown by the evidence as hereinafter mentioned, and then proceeds: "all of which said injuries are permanent and will continue to affect plaintiff in the future, and by reason thereof he has been unable since receiving same to perform his usual avocation of teamster or to do anything towards contributing to the support of himself or family, and will be thereby prevented from so doing and has been obliged to expend moneys and to incur obligations for doctor's services," etc., "all to his damage in the sum of $ 10,000."

Defendant's answer consisted of a general denial, and a plea of contributory negligence which plaintiff denied. Judgment went for plaintiff for $ 3000, from which the defendant has appealed.

The proof showed that plaintiff, 47 years old, was on September 11, 1908, and had been for some time past, employed by a St. Louis concern as a teamster to deliver lumber to customers in different parts of the city. Part of his duties was to help load lumber on his wagon. The usual wage earned by him before his injuries was two dollars per day.

At about half past three o'clock of the day mentioned, a bright, sunshiny day, after having made a delivery in the western part of the city, plaintiff's returning course took him, with his empty wagon, eastwardly in and along the way and space between defendant's southernmost rail and the southern curb of Easton avenue. Said way or space was from 16 to 17 1-2 feet in width, and was paved with brick or asphalt. The wagon plaintiff was driving was an ordinary heavy lumber wagon, without a bed, and had an eighteen foot coupling pole, which stuck out about three feet behind the rear wheels. From the rear end of the coupling pole to the front end of the tongue was about thirty feet. The axles were about fifteen feet apart. Two planks about sixteen feet long reached from axle to axle, and plaintiff was sitting on them. At a point near the middle of the block between Sarah street and Warne avenue, plaintiff came to a light spring wagon with a feed bed on it, standing near the curb. It was empty, without horses, and five or six feet wide and twelve feet long. Plaintiff started to guide his team and wagon around it. He testified that he approached the feed wagon from the rear; that it was facing east; that in order to pass it he had to turn out to the north and drive in the street car track. When he got within about twenty-five feet of the feed wagon, and just as he turned his horses out, he looked back and saw defendant's car coming east, about 600 or 650 feet west. He then drove toward the track and got both his north wheels just over the south rail of the south track. In this position he traveled eastwardly, he says, about sixty feet, his horses going in a walk, about three or four miles an hour. His hearing at this time was unimpaired but he heard no noise of the approaching car. As soon as he came to where his team and the front part of his wagon had passed a point opposite the eastern end of the feed wagon, he turned out of the car track toward the south, and was out with his front wheels and believes out with the back, but the tail end of the coupling pole was still within two feet of the track. At this moment defendant's car struck the coupling pole with great force, throwing plaintiff out on his head and severely injuring him. His testimony as to going upon the track was corroborated by Will Harris, a witness, who testified that plaintiff "was driving kind of in the middle of the track" just before the collision, and by Emil Tschudin, who testified that while standing in a furniture store nearly opposite the point of collision, he saw first the wagon and then the car pass, going east. The wagon "was either in or very near the car track", the south side of the south track. The wagon had time to drive about sixty feet when the car passed.

Defendant's theory was that respondent did not drive in the track at all; that when he approached the feed wagon, he turned his wagon out to the north to go around it, but did not get on the car track and that it was not necessary for him to do so in order to pass the wagon, but that while so engaged his wagon struck some portion of the feed wagon, and was thereby suddenly thrown upon the track in front of the car and struck by it.

In support of this theory, the motorman testified that when he first noticed plaintiff's wagon, it was about 100 feet ahead of him, and five or six feet south of the track; but as plaintiff passed the feed wagon he bore as close as four feet to the car track; that plaintiff's wagon was suddenly thrown in front of the car and was hit by it. The righthand front corner of the car struck the wagon. The car over-hung the south track about two feet.

James Evans, a witness for the defendant, testified that he was driving a furniture wagon eastward on Easton Avenue about 150 feet behind plaintiff, and that when plaintiff turned out to pass the feed wagon his hind wheel struck the tongue of the feed wagon and threw him in front of the car.

C. V. Safford and O. Shirley, passengers on the car, testified for defendant that they were looking ahead practically all the time and saw no wagon on the track; that plaintiff's wagon was three or four feet clear of the track, and suddenly slid or skidded over in front of the car.

The witnesses for both parties agreed that the car struck the tail end of the coupling pole and turned plaintiff's wagon clear around. In other words, while at the moment of collision, according to defendant's evidence, plaintiff's wagon was traveling practically east, and according to plaintiff's evidence...

To continue reading