Spiro v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Citation: 76 S.W. 684,102 Mo.App. 250
• Parties: SPIRO, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

76 S.W. 684

102 Mo.App. 250

SPIRO, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1903

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.

REVERSED AND REMANDED.

STATEMENT.

Plaintiff obtained a verdict for injuries to a horse, wagon and harness, caused by a collision with one of defendant's street cars, and defendant appealed.

Plaintiff conducts a dyeing and cleaning establishment in the city of St. Louis, and the damaged property was used to deliver packages. On the day of the accident it was in charge of Robert Hoppe, an employee of the plaintiff. The accident occurred December 2, 1902, on Laclede avenue. The driver Hoppe, had stopped at the house numbered 4034 on the south side of that avenue to deliver a package. After doing so he got into the wagon and resumed his westward course, first looking, he says, east and west for cars and seeing none. His testimony is that he "slanted over" to the west-bound track and traveled straight along said track for about seventy-five feet, when the car struck the rear end of the wagon injuring him and the property. The occurrence happened about ten o'clock in the forenoon. The day was rainy but not so dark as to obscure clear vision. Hoppe testified that he not only looked for cars in both directions, but was constantly watching from time to time as he drove on, until he was struck. These observations he made by looking around the sides of his wagon and through windows in either side and in the back. That portion of his testimony follows:

"Q. Raining a little? A. It was raining hard.

"Q. At the time you went out to get into the wagon you testified that you looked to see whether there was a car coming? A. Yes, sir.

"Q. You say you didn't see any car? A. No, sir; I didn't see any.

"Q. You got into the wagon and drove across to the north track? A. Yes, sir.

"Q. And turned into the north track? A. Yes, sir.

"Q. Now, then, did you look again to see a car? A. Yes, sir.

"Q. When did you look? A. I was looking all ways before I came--before I hit the north track; I look always for a car.

"Q. Until you got over into the north track? A. Yes, sir.

"Q. After you got on the north track and turned west, did you look any more for a car? A. Yes, sir.

"Q. When did you look next? A. As soon as I got in the track I was looking for a car, and I couldn't see the car; I never heard the bell, neither.

"Q. I am not talking about that. You looked for a car? A. Yes sir.

"Q. When you turned into the track? A. Yes, sir.

"Q. That is the last time you looked? A. No, sir.

"Q. That was the last time you looked before you got hit? A. I was looking before I got hit.

"Q. Were you looking all the time you were driving along there? A. I was always looking; I was looking all the time.

"Q. You had a glass window at the rear end of the wagon? A. Yes sir.

"Q. You had a glass window on each side of you? A. Yes, sir.

"Q. And your seat was extended out to the front; there was just a hood over the seat; it was so you could look around without any trouble? A. Yes, sir.

"Q. And were you looking constantly from the time you drove onto that track until you were struck? A. Yes, sir.

"Q. And you say you could see a car down the street to the east for some considerable distance? A. Well--

"Q. You could have seen it if it had been there to see? A. Yes, sir.

"Q. There was nothing to prevent you from seeing it? A. No, sir.

"Q. No obstruction? A. No, sir.

"Q. Nothing in the way? A. No, sir; there was nothing.

"Q. The darkness wasn't sufficient to prevent you from seeing an object the size of a car at least a block away or more? A. No, sir; well, that was a big block; from Vandeventer to Sarah is about two blocks.

"Q. And yet you say you didn't see that car and was looking for it all the time? A. Yes, sir; I do, sir, and the car was flying.

"By Mr. O'Connor: Q. After you got into the track and was driving west could you have seen the car then behind you? A. Yes, sir.

"Q. When you were in the wagon? A. No, sir; I didn't.

"By the Court: Q. Was your wagon a wagon with a box on it? A. Yes, sir.

"Q. Covered wagon? A. Yes, sir.

"Q. Frame or cloth? A. Frame.

"Q. And the only way you could see would be to see back through this window or around at the side of the wagon? A. I could see from the side and from the back, too; a glass is in behind.

"Q. You could look through the glass? A. Yes, sir."

Another witness for the plaintiff swore the view was unobstructed for about two blocks east and that he saw the car that far.

John Fahy corroborates Hoppe in some particulars. Fahy says he was standing near the house where the wagon stopped; that after a package was delivered, Hoppe drove the wagon on the north track and traveled about seventy-five feet due west when the collision occurred. This witness said there was no obstruction between the car and the wagon and not a thing to interfere with the view. Both these witnesses, while they agree the wagon and horse were traveling along the north track between the rails, the wheels of the wagon running in the rails, agree further with every other witness in the case to this paramount fact: that the blow of the car turned the wagon and horse around, so that the front end of the wagon and the head of the horse were facing straight to the east immediately after the collision; whereas before they had been moving directly west.

Here is Hoppe's narrative of the occurrence:

"Q. Were you thrown out of the wagon? A. No, sir.

"Q. You stayed in? A. Yes, sir.

"Q. The wagon was turned clean around? A. It turned the whole thing around; I had the lines in my hand.

"Q. How was the horse injured, if any? A. The horse was injured right on the hip, I think on the left side, I am not sure. In that accident where I was inside, I couldn't tell which way he was, but anyway it wasn't fit to work.

"Q. The car didn't strike the horse? A. The car struck just the wagon.

"Q. Just struck the wagon? A. Yes, sir.

"Q. And carried it around? A. Yes, sir.

"Q. The car didn't touch the horse at all? A. No, sir; I don't think it did.

"Q. So the injury the horse received was because of the wagon being knocked against it; that is the way the horse was injured, wasn't it? A. Well, the car struck the wagon from behind and turned the whole thing around.

"Q. The car didn't touch the horse at all? A. No, sir.

"Q. I believe you said you were going west? A. Yes, sir.

"Q. You were going right straight down the track? A. Yes, sir.

"Q. When this car struck you it was running tolerably fast? A. Yes, sir; it was running fast.

"Q. And struck you right square behind? A. Yes, sir.

"Q. And it turned the wagon clear around and never touched the horse, or injured the horse, except as the wagon came in contact with it? A. No, sir.

"Q. The horse was turned around--was clear on the outside of the track? A. It was right around facing the east.

"Q. It was clear on the outside of the track? A. Yes, sir.

"Q. Looking east? A. Yes, sir.

"Q. He wasn't on the track at all; there was no part of the horse on the track at all? A. When I was struck by the car, the whole wagon and horse was struck.

"Q. He was right in the center of the track? A. Yes, sir.

"Q. You mean in between two rails? A. Yes, sir.

"Q. The horse was between the two rails and the wagon wheels were running on the rails? A. Yes, sir."

Other witnesses testified that instead of the wagon being struck in the rear, as it was moving along the north track, it was struck on the right side towards the rear as it was in the act of passing over the north track from the south one on which it had been traveling previously; in other words, that the horse and wagon had been traveling along the south track, and of course in no danger from the car; but they suddenly deviated to the right and crossed to the north track when the car was but forty or fifty feet away, the result being that the horse got safely over, but the wagon was hit by the car near the rear end with such force that the back of the wagon was knocked to the west and the horse and shafts to the east. All the witnesses agree that this was the position of the horse and wagon immediately after the collision; that the wagon was turned over on its left side, while the horse was lying down in the shafts and, according to the expression of one witness, the vehicle and horse were "turned end for end."

Two disinterested men, and likewise the motorman and conductor, swore the accident happened because the horse and wagon suddenly turned on the north track from the south one, so that the front of the car collided with the rear of the right side of the wagon.

A. J. Madden narrated the occurrence as follows:

"I was sitting in the front end of the car, on the left hand side; and my first attention was called to it by the sudden stopping of the car; I looked up and the wagon was crossing the track. The horse had just about cleared it, and it all happened in an instant. The car hit the back of the wagon just a little back of the center and the wagon spun around. The horse fell to the north; and some of the passengers on the car, and the motorman and conductor, went back to it, unhitched the horse--helped unhitch the horse. There were several others came there and got it up. The conductor told the motorman--he told the motorman to go ahead with the car and the passengers got on and went out. I had a Taylor avenue transfer."

M. J. Henneke gave this testimony:

"When I first saw the wagon it was broadside across the track, and the car hit it towards the rear--that is, the side and hind wheel; turned it around and turned it over in the street and the horse was facing east; turned the wagon over."

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