Frank v. St. Louis Transit Co.

Decision Date03 March 1903
PartiesFRANK v. ST. LOUIS TRANSIT CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.

Action by Henry Frank against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Kiskaddon & Mathews, for appellant. Baker, Holtkamp & Mudd, for respondent.

Statement of Facts and Opinion.

GOODE, J.

The appellant's street car collided with a two-horse wagon, on which the plaintiff was sitting, at the intersection of Victor and Ninth streets, in the city of St. Louis, October 30, 1899. The accident occurred early in the morning, between half past 6 and 7 o'clock, while the plaintiff was driving the wagon, loaded with lumber, eastward on Victor street.

The evidence shows Victor street runs east and west, and Ninth street north and south; also, that there was a curve in Ninth street about 150 feet below the crossing of the two streets, so that one driving onto Ninth from the west would have his vision obstructed somewhat by the houses on its west side, so as to prevent his seeing a car coming along said curve until he had advanced some distance into the street.

The negligence charged is the failure to give warning by ringing the gong of the car, or to have a headlight burning, failure to slacken the speed of the car when approaching the crossing, and running at too high a speed.

The defense of contributory negligence was interposed, the answer charging the plaintiff drove onto the track in such close proximity to the car that it was impossible for the motorman to check the car soon enough to avoid a collision.

There was much testimony that the morning was very foggy, and that a person could see only a short distance, and some testimony that the fog had about cleared up when the collision occurred. There was also much testimony that the car was running at a slow speed, and some that it was running fast. The testimony was about evenly balanced as to whether the motorman sounded the gong. Some passengers on the car, and persons near when the accident happened, swore the gong was not sounded at all, while the motorman and other witnesses swore it was constantly sounded as the car approached Victor street. No headlight was burning. Some witnesses swore the car ran 30 feet past the wagon after striking it, but the motorman swore it only ran four or five feet past.

Plaintiff testified that before driving on the track he not only stopped his wagon, but got off and went ahead to look for a car, but neither saw nor heard one; that he resumed his position on the wagon, and drove rapidly onto the track, in order to cross before a car came along, and that he did not see or hear one until he was struck. He testified also that there was another wagon just ahead of his, the driver of which also stopped before venturing across the track. The motorman swore the fog had lifted just before he started on his run, but when he approached Victor street he could see only a few feet ahead, that there were intervals of fog and bright spots all the way up Ninth street, but the fog was pretty thick at Victor, and that he could not see more than four or five feet ahead as he approached it. On this account he was running slowly and ringing his bell constantly, because that was all he had to depend on. He said his car was not making more than four or five miles an hour, and that he had only a glimpse of plaintiff sitting on the hounds of the wagon before he ran into him.

Besides instructing as to the conventional definition of the words "ordinary care," and the elements of damage to be considered if the finding was for the plaintiff, the court told the jury, in the first instruction given for the plaintiff, that if the morning was unusually foggy, and the car ran against the plaintiff through the negligence of the servants operating it in not giving warning of the approach of the car at the crossing of Victor and Ninth streets by ringing the gong, or not burning the headlight, or the failure of the motorman to slacken the speed of the car as he approached Victor street, if the jury believed from the evidence that either of said acts or omissions occurred, and further believed the same constituted negligence by which plaintiff was injured, while he was exercising ordinary care and prudence for his own safety, their verdict should be in his favor. That although the jury believed the plaintiff did not exercise all the care in his power for his safety, but that he did not fail to use care to such an extent as to directly contribute to cause his injury, and further believed the accident would not have occurred but for the defendant's negligence, if the jury found the defendant was negligent, the verdict must be for the plaintiff.

For the defendant the court instructed: First, if the jury believed the motorman, on account of the fog, was running at a slow speed, and continually sounded his gong, and kept a good lookout for any one on the street, and did all he could to avert the accident, and if, notwithstanding all precautions, the density of the fog prevented the latter from seeing the plaintiff in time to stop the car and avert the collision, the verdict must be for the defendant. Secondly, if the morning was foggy, so that the view of an approaching car was obscured, and there was a curve south of the intersection of the two streets, and plaintiff was familiar with the locality and knew of the curve, it was his duty, before attempting to cross the track, to exercise greater care than he would have been bound to use if the morning had been clear and there had been no curve in the track. Further, if the jury believed he failed to take such precautions as an ordinarily prudent person would have taken under such circumstances, and in consequence of the failure came into collision with the car, he could not recover. Thirdly, that though the jury might believe the motorman did not slacken speed at the approach of Victor street, but was running at a great speed, yet if they found it was foggy, and plaintiff, by the exercise of ordinary care, considering the fog, might have seen or heard the...

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6 cases
  • Battles v. United Railways Company of St. Louis
    • United States
    • Missouri Court of Appeals
    • December 2, 1913
    ... ... Brick Co. v. Railroad, 17 Mo.App. 624; Molyneux v ... Railway, 81 Mo.App. 25; King v. Railroad, 211 ... Mo. 1; Schmidt v. Transit Co., 140 Mo.App. 182. (b) ... Inasmuch as there was no law or ordinance requiring a gong to ... be sounded and the accident did not occur at a ... 367; Baxter v. Transit ... Co., 103 Mo.App. 597; Zander v. Railroad, 206 ... Mo. 470; Koenig v. Union Depot Co., 173 Mo. 698; ... Frank v. Transit Co., 99 Mo.App. 323. (7) Under the ... rule of res ipsa loquitur, evidence of the usual and ordinary ... operation of a device, and of ... ...
  • Byars v. Wabash Railroad Co.
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    • December 5, 1911
    ... ... WABASH RAILROAD CO., Appellant Court of Appeals of Missouri, St. Louis December 5, 1911 ... [141 S.W. 927] ... [Copyrighted Material Omitted] ... [141 S.W. 928] ... Railroad, 85 ... Mo. 229; Warner v. Railroad, 178 Mo. 125; Sapro ... v. Transit Co., 102 Mo.App. 250; Powell v ... Railroad, 76 Mo. 80; Harlan v. Railroad, 65 Mo ... 22; ... the circumstances in each particular case. Elliott v ... Railroad, 105 Mo.App. 523; Frank v. Transit ... Co., 99 Mo.App. 323; Huckshold v. Railway, 90 ... Mo. 548; Donohue v. Railway, ... ...
  • Battles v. United Rys. Co. of St. Louis
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    ...597, 78 S. W. 70; Zander v. R. R., 206 Mo. 470, 103 S. W. 1006; Koenig v. Union Depot Co., 173 Mo. 698, 73 S. W. 637; Frank v. Transit Co., 99 Mo. App. 323, 73 S. W. 239. An examination of cases, however, will disclose that in each instance the facts and circumstances in evidence differ qui......
  • Fassbinder v. The Missouri Pacific Railway Co.
    • United States
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    • November 4, 1907
    ...114 Mo.App. 47, 89 S.W. 330; Sykes v. Railway, 178 Mo. 693; Appel v. Eaton & Prince Co., 97 Mo.App. 428, 71 S.W. 741; Frank v. Transit Co., 99 Mo.App. 323, 73 S.W. 239.] The facts in evidence most favorable to the cause of asserted tend to establish the negligence of defendant under the rul......
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