O'Rourke v. Lindell Ry. Co.

Decision Date18 January 1898
Citation44 S.W. 254,142 Mo. 342
PartiesO'ROURKE v. LINDELL RY. CO. et al.
CourtMissouri Supreme Court

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by Johanna O'Rourke against the Lindell Railway Company and another. From a judgment for plaintiff against the Lindell Railway Company only, it appeals. Affirmed.

Boyle, Priest & Lehmann, for appellant. A. R. Taylor, for respondent.

MACFARLANE, J.

This is an action for compensation for injuries to plaintiff, alleged to have been sustained while plaintiff was a passenger on a car of the defendant the St. Louis Suburban Railway Company. The car on which plaintiff was a passenger came into collision with a car of the Lindell Railway Company, and plaintiff's injuries were charged to have resulted in consequence of the collision. The plaintiff brought her action against both of the railway companies, and obtained a verdict and judgment against the Lindell Company for $3,000 damages. The cause was tried before Judge Flitcraft and a jury. As to the Suburban Company, the jury found for the defendant. The Lindell Company moved for a new trial, which being refused, the pending appeal was taken.

The only instances of error assigned by the appellant's brief refer to the rulings in giving or refusing instructions. The place and surroundings of the collision are thus described in the statement of the learned counsel for appellant: "The general course of Grand avenue is north and south, and on this street, between Locust avenue on the south and Finney avenue on the north, the tracks of the Lindell Company are laid. These tracks are intersected by the tracks of the Suburban Company, practically at right angles, by the extension of its line from Franklin avenue across Grand avenue on the east into Morgan street on the west. At a point on Franklin avenue about 200 feet east of Grand avenue, the tracks of the Suburban Company are diverted southwardly and obliquely across the southeast corner of the lot bounded by Franklin avenue and Grand avenue on the north and west, and thence a little south of westwardly into Morgan street. This deflection affords an open view for the Lindell car going south, of the Suburban cars approaching the intersection, for over 200 feet. An equal opportunity for this reason is afforded those on the Suburban car to see from an equal or greater distance the approach from the north of a car on the Lindell tracks." "The car upon which the plaintiff was a passenger was bound west, and approached the intersection of the tracks of the two companies from the east, while the Lindell car, with which it collided, approached the intersection from the north. For a distance of 250 feet north of the intersection of the two railways, and towards the intersection, the tracks of the Lindell Company are upon a downgrade on an average of 1.2 per cent. From a like distance east of the intersection of the two tracks, and approaching the intersection of the tracks, the tracks of the Suburban Company are upon an upgrade of 1.5 per cent. As a general rule, preference of crossing, the opportunities being equal, was given to the Suburban Company." The plaintiff was seated in the car going west when it was struck by the car of the Lindell Company going south. In the collision plaintiff was seriously hurt. There is abundant testimony from which negligence could reasonably be found on the part of the Lindell Company in the management of its car. There is also testimony from which it might reasonably have been found that the Suburban Company was negligent in not taking due care to avoid the collision after the danger thereof became manifest.

Error is only assigned to the rulings of the court in giving and refusing instructions. The court gave one instruction at request of plaintiff, which, for convenience, we divide into four paragraphs. It is as follows: "(1) The court instructs the jury that if the defendant St. Louis & Suburban Railway, by its servants in charge of its car, received the plaintiff upon its car as a passenger to be carried as such to her point of destination on said defendant's line, then it was the duty of said defendant carrier, by its servants in charge of its car, to have exercised a very high degree of care for the safety of its passenger, such as would have been used by practical and skillful railroad employés under like or similar circumstances; and said defendant would be liable for even slight neglect, if such neglect directly contributed to cause injury to said passenger. And this is true notwithstanding the ordinance read in evidence." (2) (On measure of damages; is not questioned in this court.) "(3) If the jury find from the evidence that on the 16th day of February, 1894, the St. Louis & Suburban Railway Company was the carrier of passengers for hire, and that on said day said defendant, by its servants, received Johanna O'Rourke as a passenger upon defendant's car, to be carried as such to her point of destination on said defendant's line; and if the jury further find from the evidence that whilst said Johanna was such passenger upon said car, at or near the intersection of Grand avenue and Morgan street, the car on which said Johanna was such passenger was collided with by a car belonging to the Lindell Railway Company, and that said Johanna was thereby injured, — then the court instructs the jury that, if the servants of defendant St. Louis & Suburban Railway Company in charge of its car in which said Johanna was such passenger could, by the exercise of a very high degree of care and watchfulness in the management and control of said car, have prevented said collision, and failed to do so, then the St. Louis & Suburban Railway is liable." "(4) And if the jury further find from the evidence in this case that the servants of defendant Lindell Railway Company, prior to and at the time of said collision, were not exercising ordinary care to avoid said collision, and that by the exercise of such care by the servants of such defendant they would have avoided the collision; and if the jury further find that such...

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