Appeal
from St. Louis City Circuit Court.--Hon. Selden P. Spencer
Judge.
Defendant
has a double street railway track on Easton avenue running
east and west in the city of St. Louis. Easton avenue is
crossed at right angles by Euclid avenue running north and
south. On December 6, 1900, plaintiff's teamster was
driving plaintiff's three-horse wagon south on Euclid
avenue, the driver being seated on the wagon. When he reached
Easton avenue he turned the lead horse in a southeasterly
direction for the purpose of crossing to the south side of
Easton avenue and then proceeding east thereon. When his lead
horse reached the south railway track on Easton avenue, it
was struck by a car traveling east and the horse and his
harness were badly damaged. This suit is to recover this
damage.
The
defense was contributory negligence.
On the
part of plaintiff the evidence tends to prove that as soon as
the driver cleared the building line on Easton avenue he
looked and listened for a car on the south track but neither
saw nor heard one; that his vision was partially obstructed
by a west-bound car that had stopped on the northwest corner
at the intersection of Euclid and Easton avenues for the
purpose of discharging passengers, and that the noise of his
wagon and the west-bound car interfered with his hearing; not
seeing or hearing a car on the south track he proceeded to
cross the street in a southeasterly direction; that the car
traveling east on the south track gave no warning signal as
it approached the crossing and was running at a high and
dangerous rate of speed; a speed of from eighteen to twenty
miles an hour.
On the
part of defendant the evidence tended to prove that the car
was running on a down grade at a moderate speed with the
power shut off; that the gong was continuously sounded as the
crossing was approached; that the night was dark and rainy
but the car was brilliantly lighted; that Easton avenue is
sixty feet wide, and that space between the building lines is
eighty feet; that the driver could have seen the car after he
entered the avenue and passed beyond the obstruction caused
by the standing car before his lead horse had reached the
south track if he had looked.
For the
plaintiff the court gave the following instructions:
"If
the jury find and believe from the evidence that on December
6, 1900, the defendant was operating a street railway by
means of electricity along Easton avenue, in the city of St
Louis, and was running its cars along said avenue in charge
of a motorman and conductor; and if the jury further find and
believe from the evidence that on said date plaintiff's
wagon was being driven by plaintiff's driver southwardly
along Euclid avenue, and was proceeding to cross Easton
avenue from the north side thereof toward the south side
thereof, at its intersection with Euclid avenue; and if the
jury further find and believe from the evidence that while
plaintiff's said wagon was so proceeding to cross Easton
avenue, an east-bound car in charge of defendant's
servants ran into the lead horse attached to said wagon and
injured plaintiff's said horse and its harness; and if
the jury further find and believe from the evidence that at
the time of, and immediately prior to such injury said
east-bound car was permitted to run at a rate of speed which
was excessive and dangerous to persons and animals crossing
Easton avenue at said point, or that the motorman failed to
give any notice or warning of the approach of his car; and if
the jury further find and believe from the evidence that said
rate of speed or said failure to give warning was negligent
under all the facts and circumstances detailed in the
evidence and under these instructions, and that but for such
negligence said injury would not have happened; and if the
jury further find and believe from the evidence that
plaintiff's said driver at the time of said injury was
exercising ordinary care for the protection of his team in so
driving across Easton avenue then the jury will find a
verdict in favor of the plaintiff.
"What
constitutes 'ordinary care' as mentioned in these
instructions depends on the facts of each particular case. It
is such care as a person of ordinary prudence would exercise
(according to the usual and general experience of mankind) in
the same situation and circumstances as those of the person
or persons in this case with reference to whom the term
'ordinary care' is used in these instructions. The
omission of such care is negligence in the sense in which
that word is used in these instructions.
"If
you find for the plaintiff, you will assess its damages at
such sum, not exceeding two hundred dollars as will
reasonably compensate plaintiff for the damage to
plaintiff's horse and harness, and for plaintiff's
expenses for medical services, feed, care and attention to
said horse, and for the loss to plaintiff from being deprived
of the use of said horse.
"If
your verdict is for the defendant, you will simply so state
in your verdict."
For the
defendant the following:
"1.
The court instructs the jury that plaintiff's petition
charges that its servant was on December 6, 1900, about 8 p
m. driving his stake wagon drawn by three horses, one of them
being in the lead, south on Euclid avenue, and that at the
intersection of Euclid and Easton, while said wagon was being
driven from the north side towards the south side thereof, an
eastbound car of the defendant company struck said lead
horse. The negligence charged against said defendant is
first, that said car while approaching said crossing was
being operated at an excessive and dangerous rate of speed to
persons and animals crossing Easton avenue at its
intersection with Euclid: second, that the motorman thereof
failed to give any warning of the approach of said car on
Euclid avenue. The court instructs you that in regard to
those allegations of negligence the burden of proof is upon
the plaintiff to show by the preponderance or greater weight
of the evidence that said accident was caused by either one
or both said alleged acts of negligence. By burden of proof
is meant that the evidence to sustain a proposition thus to
be proved is greater in weight and credibility in your
judgment than the evidence to the contrary.
"2.
The court further instructs the jury that it was the duty of
plaintiff's driver to both look and listen for an
approaching car just immediately before driving across
defendant's track, no matter whether defendant's
servants on said car gave the signals or not, and no matter
at what rate of speed said car was running. And if from the
evidence the jury believe that said driver failed to both
look and listen just before crossing said track, and thereby
materially contributed to the collision between the car and
the horse, then your verdict should be for the defendant.
"3.
The court instructs the jury that if from the evidence they
believe that both plaintiff's driver and the servant of
defendant operating defendant's car were both guilty of
negligence, and that the negligence of plaintiff's driver
materially contributed to the injury, then your verdict shall
be for the defendant."
The
jury returned a verdict for plaintiff and assessed his
damages at $ 168.75.
After
an ineffectual motion for a new trial defendant appealed.
Judgment affirmed.