75 S.W. 611 (Mo. 1903), Murray v. St. Louis Transit Company

Citation:75 S.W. 611, 176 Mo. 183
Opinion Judge:VALLIANT, J.
Party Name:MURRAY v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann, Walter H. Saunders and Lon. O. Hocker for appellant. George E. Smith for respondent.
Case Date:June 20, 1903
Court:Supreme Court of Missouri
 
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Page 611

75 S.W. 611 (Mo. 1903)

176 Mo. 183

MURRAY

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

June 20, 1903

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

Reversed and remanded.

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

(1) The court erred in submitting to the jury, in the instructions given of its own motion, the question of defendant's liability in failing to sound its gong, as there was no legal evidence of such failure. The only interpretation which can be placed upon the testimony respecting the gong, given by all of plaintiff's witnesses, is that they were not paying any attention to it. Such testimony does not make out a case of negligence, the presumption being that the defendant exercised proper care. Cathcart v. Railroad, 19 Mo.App. 118; Summerville v. Railroad, 29 Mo.App. 48. (2) The court erred in refusing defendant's instructions 2 and 3, which stated to the jury the plaintiff's obligation to look and listen, and in giving one of its own motion, exacting of him only ordinary care generally. Zimmermann v. Railroad, 71 Mo. 490.

George E. Smith for respondent.

OPINION

[176 Mo. 184] VALLIANT, J.

Plaintiff recovered a judgment for $ 500 damages for personal injuries received by him in a collision with one of defendant's street cars, caused, as he alleges, by the negligence of defendant's servants. Defendant appeals from the judgment, and as the appeal [176 Mo. 185] was taken before this court had passed on the question of the validity of the constitutional amendment authorizing nine jurors in a civil case to return a verdict, and as that question was raised in the trial court in this case, the appeal was brought to this court. Since the appeal in this case was taken, however, that constitutional question has been decided by this court and it is no longer in doubt. [Gabbert v. Railroad, 171 Mo. 84.]

The petition charges the following acts of negligence:

The servants in charge of the car were inexperienced and unskillful;

They were running the car at an unlawful and reckless speed;

The motorman in charge saw the plaintiff crossing the track in ample time to have averted the accident but neglected to do so;

The motorman neglected to ring his gong.

The answer was a general denial, and a plea that plaintiff was guilty of negligence contributing to the accident in that he drove on defendant's track without looking or listening and in such close proximity to the moving car as to prevent those in charge of it from stopping in time to prevent the collision.

The plaintiff's evidence tended to prove as follows:

Montgomery street runs east and west crossing Ninth street at right angles. In the afternoon of August 17, 1900, plaintiff, a man fifty-nine years of age, was driving a one-horse wagon going west on Montgomery street. It was a covered wagon with curtains at the sides, but the curtains were rolled up and the driver could see to the front and on both sides. Defendant owns a single track street railroad on Ninth street, the cars over which pass only in one direction, north. As the plaintiff, driving, approached defendant's tracks when his horse's head was six or seven feet east of the east rail he looked to the south and saw [176 Mo. 186] a car approaching about half a...

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