Cogan v. Cass Avenue & Fair Grounds Railway Company

• Decision Date: 23 December 1902
• Citation: 73 S.W. 738,101 Mo.App. 179
• Parties: RICHARD COGAN, Respondent, v. CASS AVENUE AND FAIR GROUNDS RAILWAY COMPANY, Appellant
• Court: Missouri Court of Appeals

73 S.W. 738

101 Mo.App. 179

RICHARD COGAN, Respondent, v. CASS AVENUE AND FAIR GROUNDS RAILWAY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 23, 1902

Appeal from St. Louis City Circuit Court.--Hon. S. P. Spencer Judge.

REVERSED.

Judgment reversed.

Boyle Priest & Lehmann, Geo. W. Easley, Lon. O. Hocker and Walter H. Saunders for appellant.

On the disputed points, the testimony is overwhelmingly in favor of the defendant. One witness for plaintiff himself says that no bell was rung. Six witnesses of the defendant say that the bell was repeatedly rung while the car was approaching Fourteenth street. This point was immaterial, however because plaintiff states that he twice saw the car before he reached the track. In any view of the case, the positive testimony of six witnesses is worth more than the negative testimony of one, the most interested witness in the case. Sanders v. Railroad, 147 Mo. 411; Jackson v. Railroad, 157 Mo. 621.

A. R. Taylor for respondent.

(1) How can a court without any more knowledge of the operation of street cars than a layman, without any more knowledge than a layman as to how to cross a railroad track, undertake to substitute its judgment for that of a jury upon these questions? The law by entrusting this duty to a jury has clearly denied it to the court. Is it upon the theory that a court is more intelligent or more fair than a jury? Convince the source of power of this fact and they will probably amend their constitution and change the law, but until so convinced, the rule prescribed by the sovereign will ought to be observed. (2) Let the court determine the law and advise the jury what it is, and let the jury determine the facts, and apply the law. This is the genius of our judicial system. This is the flower of the law in full blossom. No court has the right to disregard it on the ground that a jury mistakes the facts. There is one corrective restraint, alone, provided by the law--the power of a trial court to award one new trial on the ground that a verdict is against the weight of the evidence. And a conclusive answer to this contention is that the power that made the law and makes officials to administer it, has thought fit, through the history of this country and its mother, in the law, to prefer to entrust this function to a tribunal other than the judge. (3) The practice of courts usurping the functions of the jury has produced a great part of the confusion of decisions which all must admit to exist. This it is that terrorizes trial courts and makes their duty of properly determining what the law is so uncertain and arduous.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

BARCLAY, J.

--Plaintiff had a verdict and judgment in the circuit court in this action for injuries sustained by him in a collision in June, 1899, with a street railway car operated by the defendant company. He began his action before Justice Cullinane, and on appeal the case was tried anew with the result of a finding and judgment for plaintiff in the sum of $ 550. Defendant then prosecuted this appeal after taking the necessary steps for that purpose.

Plaintiff's case, as stated by him as a witness, discloses that he was a man of about fifty-six years at the time of the mishap in suit. He was engaged in hauling for one of the electric power companies, and was on his way from home to work, driving a two-horse team in a wagon, almost empty, at about 6:20 a. m., June 21, 1899. The collision took place at Fourteenth and Carr streets in St. Louis. Plaintiff was driving south on Fourteenth street and the car which hit his wagon was moving east on Carr street. The day was bright and clear.

Plaintiff's own story of the affair, or the material feature of it, had better be given in his own language as it appears in certain passages of his testimony as follows:

"Q. Now, you were driving south on Fourteenth street with your team? A. Yes, sir.

"Q. Was your wagon empty or did it have any load? A. It had nothing only me and the feed-box--that is all. Of course, you don't want to work all day without eating something, do you?

"Q. Well, now, as you approached and were crossing Carr street, how were you moving--in a walk or trot? A. I was going in what you call a little dogtrot; just trotting along something like a good spring-walk. Horses that are used to going that way go easier than in a spring-walk.

"Q. Now, in what part of Fourteenth street were you driving? A. I was in the middle of the track, going south.

"Q. Was your wagon in the track? A. Yes, sir; on the Fourteenth street track, going south.

"Q. There was a railroad track on Fourteenth street, was there? A. Yes, sir; of course there was.

"Q. Now, on Carr street was the defendant's track--the Cass Avenue and Fair Grounds Railway Company? A. Yes, sir.

"Q. Did they have one track or two tracks on Carr street? A. Now, I don't exactly know, but I know there is one. I don't know whether it has a double track on that street or not.

"Q. Well, when you were coming into Carr street, did you look west to see if there was a car coming? A. I did.

"Q. Did you see a car? A. I did; I seen a car about 200 or 250 feet from me coming down; the car was going east.

"Q. Well, it was coming towards you? A. Yes, sir.

"Q. Looking up the street and seeing the car coming could you tell anything about its speed? A. Well, sir; I could not tell exactly how fast they were going until they struck me, and I know they knocked me down pretty quick.

"Q. Where were you when you realized that the car was about to catch you on the track--had your horses crossed the track, or on the track, or how? A. They were going towards the crossing on the track, and I was sitting in the middle of the wagon on a seat, and I thought I had time to pass, and before I got off the track I was struck.

"Q. Well, I asked you if at that time your horses were on the track? A. When I saw the car?

"Q. No, when you first saw the car, as I understood you, you were just coming on Carr street? A. No, I was coming onto the track.

"Q. About how wide is Carr street--do you remember or do you not? A. Well, I should think it is about--it is a public thoroughfare; it is over forty feet. I think that is about it.

"Q. Now, I ask you the question, where were you when you saw the car was coming dangerously close to you--were your horses across the track, or on the track? A. They were just crossing on the track when the car struck me.

"Q. Were the horses on the track or your wagon? A. My wagon was on the track and the hind part of the horses were just getting off the track when I was knocked down.

"Q. How long was your wagon--about how many feet in length? You had a tongue to your wagon, did you? A. Yes, sir; I could not drive it without a tongue.

"Q. Well, you had a tongue to it? A. Yes, sir.

"Q. Now, can you tell the jury about how long from tongue to rear the wagon was--the wagon and team--about how many feet--twenty-five or thirty or what? A. I should say about twenty-five feet.

"Q. The whole length of wagon and team? A. I think about twenty-five feet; probably a little more.

"Q. Were these large or small horses? A. They were a large team. One was sixteen and one-half hands high and one eighteen.

"Q. The length of the horses would be about what--that is hitched to the wagon. The length would be about what? A. I should think they would come very near ten feet. The coupling pole, I should think, was twelve or fourteen feet.

"Q. The tongue you mean? A. Yes, sir; some twelve or fourteen feet long; it is longer than the horses, maybe two feet, because they must have something to bear back on.

"Q. Now, what part of your wagon or team did the car strike? A. It struck me about the center. It dashed in from the hind wheel and struck the forward hound, and I did not know anything more after that.

"Q. Do you know how you fell or where you fell? A. I know very well I thought my neck was broke against the car, and I dropped down between the car and the wagon, and I could not tell any more. I thought my neck was broke."

The foregoing quotation is from plaintiff's direct examination. On cross-examination he made the following further statements:

"Q. Now, Mr. Cogan, you were driving these two horses south on Fourteenth street? A. Yes, sir.

"Q. You were going to work? A. Yes, sir.

"Q. Going down to the corner of Nineteenth and Locust streets to work that day? A. Yes, sir.

"Q. At what rate of speed were you driving south on Fourteenth street? A. It was my nearest route.

"Q. I say at what rate of speed were you driving--how fast? A. Well, something in a small trot; what you call a little jog-trot.

"Q. Just a little faster than a walk? A good walk? A. Yes, sir. You see, lots of horses walk as fast as that kind of a trot.

"Q. Well, you were going four or five miles an hour? A. Yes, sir four or five miles an hour. I wanted to get there first in the morning.

"Q. You were in a hurry to get to work? A. Undoubtedly. The first man there has the first load.

"Q. Now, Fourteenth street is a narrow street, is it not? A. Oh, I don't think so.

"Q. Well, what is the width of it--about? A. It is a pretty wide street, I think.

"Q. Well, what is the width? A. I think about forty feet.

"Q. And what is the width of Carr street? A. I think about the same; I think there is a ten-foot sidewalk.

"Q. There is a single car track on Fourteenth street and a single track on Carr street, is there not? A. I don't know; I think there is on Fourteenth street.

"Q. You say you were driving south in the track? A. Yes, sir.

"Q. Isn't there a church at the northwest corner of Carr and Fourteenth streets? A. Yes, sir.

"Q. That church is built right up to the building line? A. Something like it.

"Q. Well,...