Kirchof v. United Rys. Co. of St. Louis

• Decision Date: 24 January 1911
• Parties: KIRCHOF v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

135 S.W. 98

155 Mo. A. 70

KIRCHOF v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing Denied February 9, 1911.

1. STREET RAILROADS (§ 117)—INJURY TO DRIVER OF VEHICLES — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE—EVIDENCE.

In an action against a street railway company for injuries by a collision, where plaintiff was driving along the street between the track and the curb, and attempted to turn out to avoid an empty wagon standing near the curb, evidence held sufficient to go to the jury on the question of defendant's negligence and plaintiff's contributory negligence.

2. EVIDENCE (§ 473)—TESTIMONY—CONCLUSIONS.

Even nonexpert witnesses are permitted to state their conclusions of fact as facts where the basic facts are of such a nature that they cannot be reproduced so as to present to the jury the picture impressed on the mind of the witness, so that the impression or conclusion becomes an evidential fact, and may be given to the jury because of the impossibility of bringing to them all of the facts that combine to create it.

3. EVIDENCE (§ 528)—EXPERT TESTIMONY— PHYSICIAN'S OPINION.

It was not error to permit a doctor who examined plaintiff in an action for personal injury, in which plaintiff suffered a fractured skull and other damages, to state that up to the time of trial plaintiff had been unable to do manual labor.

4. APPEAL AND ERROR (§ 1050)—PREJUDICIAL ERROR—SPEED OF CAR.

Where a witness in an action for injury in a street car collision testified that the car was going something near 15 miles an hour, he would not say if it was more or less, it was not prejudicial error to permit him to state that the car was running faster than the cars on that line ordinarily ran, though there was no evidence of how fast they ordinarily ran.

5. STREET RAILROADS (§ 118)—ACCIDENTS— NEGLIGENCE OF MOTORMAN—INSTRUCTIONS.

In an action against a street railway company for injuries from a collision, an instruction after hypothesizing the facts constituting defendant's negligence, and concluding, "then, unless you further find from the evidence under the other instructions that plaintiff was so negligent as under all the circumstances to prevent his recovery, your verdict will be in plaintiff's favor," is not objectionable as containing the doctrine of comparative negligence, or as leaving to the jury to say how much negligence plaintiff must have been guilty of before it would bar his recovery.

6. STREET RAILROADS (§ 118)—ACCIDENTS— DUTY OF MOTORMAN—INSTRUCTIONS.

A complaint that a motorman, negligently and without using ordinary care to control and stop a car, caused and suffered the same to strike a wagon, etc., is broad enough to cover the theory that the motorman kept the control, but did not exercise it as an ordinarily prudent man would, and, if as an instruction hypothesizes the motorman did not keep his car under such control as an ordinarily prudent man would under all the circumstances in evidence, then, as charged in the petition, he did not use ordinary care to stop the car.

7. NEGLIGENCE (§ 141)—HUMANITARIAN DOCTRINE COMBINED WITH CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.

An instruction which applies the humanitarian doctrine is not inconsistent with instructions denying the right of recovery where there is contributory negligence.

8. DAMAGES (§ 216)—INSTRUCTIONS—GROUNDS —PERMANENT INJURY TO PERSON.

Where the petition and proof present the question of permanent injury, it is not error for instructions to authorize damages for loss of earnings and for future disability to labor.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Johann D. Kirchof against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

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 $3,000, 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 were to help load lumber on his wagon. The usual wage earned by him before his injuries was $2 per day. At about half past 3 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 17½ 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 18-foot coupling pole, which stuck out about 3 feet behind the rear wheels. From the rear end of the coupling pole to the front end of the tongue was about 30 feet. The axles were about 15 feet apart. Two planks about 16 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 5 or 6 feet wide and 12 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 25 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 of his north wheels just over the south rail of the south track. In this position he traveled eastwardly, he says, about 60 feet, his horses going in a walk about 3 or 4 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 60 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 pla...