Sepetowski v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Citation: 76 S.W. 693,102 Mo.App. 110
• Parties: SEPETOWSKI, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Court of Appeals

76 S.W. 693

102 Mo.App. 110

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

Court of Appeals of Missouri, St. Louis

November 3, 1903

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

REVERSED AND REMANDED.

STATEMENT.

The suit was instituted in a justice of the peace court, in the city of St. Louis, by filing therein a complaint in two counts. After formal allegations, the first count states "that on October 4, 1901, while plaintiff was driving his wagon, containing groceries, north on Thirteenth street in the city of St. Louis, it was struck by a west-bound car on Wash street; that as he got into Wash street, one of the defendant's cars came westwardly on Wash street, from a point east of said Thirteenth street, and, owing to the failure of the motorman thereof to ring his bell, plaintiff had no notice of its approach, and, after becoming aware of its approach, was unable to get out of the way of said car. Plaintiff states that said car came along said Wash street at a high rate of speed, and gave no sound of warning as it approached Thirteenth street, so that he drove on Wash street without any knowledge of the approach of said car. Plaintiff states that defendant's motorman in charge of said car violated the ordinance above set out (the vigilant-watch ordinance pleaded in extenso) by failing to keep a vigilant watch for vehicles, and by failing to stop his said car in the shortest time and space possible after discovering plaintiff in a position of danger, and was, therefore, guilty of carelessness and negligence, as a result of which his horse, wagon and contents of wagon, were injured, to his damage in the sum of $ 200, for which he prays judgment."

The second count is a substantial repetition of the first, except it alleges personal injuries to the plaintiff and prays judgment for $ 300 on account thereof.

After trial and judgment in the justice's court the cause was appealed to the circuit court where, on a trial anew, the jury rendered a verdict for the plaintiff and assessed his damages at $ 125 on the first count and at $ 300 on the second. Timely motions for new trial and in arrest of judgment were filed, both of which the court overruled. Defendant then appealed.

Judgment reversed and cause remanded.

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

(1) The objection to the introduction of any evidence under the second count of the petition, which was identical with the first count, save that the first was for damage to property, and the second for personal injury, both growing out of the same occurrence, should have been sustained. Trammell v. Vaughan, 158 Mo. 214. (2) The demurrer to the evidence should have been sustained. The plaintiff could have seen and heard the approaching car for several blocks, had he looked and listened, and could, by ordinary care, have avoided the injury. (3) The court declared, in an instruction given to the jury on behalf of the plaintiff, that the plaintiff was guilty of negligence, as a matter of law, and yet submitted to the jury the question of defendant's liability upon a misapprehension of the humanitarian rule. The evidence showed that plaintiff, without looking or listening for an approaching car, came trotting down a narrow street, directly in front of the car, and plaintiff's expert testified that the motorman could not stop the car within the distance then existing in time to avoid the accident. Watson v. Railway, 133 Mo. 250; Murphy v. Railway, 153 Mo. 262; Holwerson v. Railway, 157 Mo. 216; Vogg v. Railroad, 130 Mo. 172; Boyd v. Railroad, 105 Mo. 371; Hanselmann v. Railroad, 88 Mo.App. 123; Killion v. Railroad, 86 Mo. 473; Glenville v. Railroad, 61 Mo.App. 629; Karl v. Railroad, 55 Mo. 482; Moore v. Railroad, 126 Mo. 278; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 386; Cooley on Torts (2 Ed.), p. 812.

J. Hugo Grimm for respondent.

(1) Although it be conceded that it was irregular for plaintiff to state his cause of action in two counts, asking damages for injuries to his property in one, and for injury to his person in another, yet such error could not in anywise have prejudiced the defendant. Sims v. Railroad, 83 Mo.App. 250; Silcox Martin v. McKinney, 64 Mo.App. 330; Lamb v. Railway, 33 Mo.App. 489. (2) The cause of action was negligence of the motorman in running his car. Plaintiff was not confined to one negligent act. He had the right to state and prove either statutory or common-law negligence, or both. Senn v. Railway, 135 Mo. 517-9. (3) It was not necessary to either plead or prove an acceptance of the vigilant watch ordinance; it was binding upon defendant without any acceptance on his part. Jackson v. Railway, 157 Mo. 621; Hutchinson v. Railroad, 161 Mo. 250; Wendler v. People's House Furnishing Co., 165 Mo. 527; Weller v. Railroad, 164 Mo. 180; McAndrew v. Railway, 88 Mo.App. 97. (4) The demurrer to the evidence was properly overruled. If it were conceded that plaintiff was guilty of negligence in driving upon the tracks under the circumstances in this case, which we deny, yet there was ample evidence to show that defendant's motorman, by the exercise of the care prescribed by ordinance, could have discovered plaintiff's position of danger, and did in fact discover it in time to have averted the injury to him by the use of the appliances at his command, and that he made no effort whatever to stop his car even after actually discovering plaintiff's position of danger. Cooney v. Railway, 80 Mo.App. 232; Bunyan v. Railway, 127 Mo. 15; Morgan v. Railway, 159 Mo. 262; Hutchinson v. Railway, 88 Mo.App. 376; Schmidt v. Railroad, 163 Mo. 656. (5) Defendant can not complain of the instruction, for in its instruction No. 9-D, it asks the court to instruct the jury that it was not the duty of the motorman to attempt the stopping of his car until he saw, or could have seen by keeping a vigilant watch, that plaintiff's vehicle was in a position of danger. That instruction presents the question just as broadly as does the instruction given by the court. Christian v. Ins. Co., 143 Mo. 460; Sowden v. Kessler, 76 Mo.App. 581.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J. (after stating the facts as above.)

1. The evidence is that Wash street, in the city of St. Louis, runs east and west and is forty-eight feet wide with a single street railway track laid in its center over which defendant operates street cars from east to west propelled by electric power; that Thirteenth street is sixty feet wide, runs north and south and crosses Wash street between High and Fourteenth streets; that Wash street, east of Thirteenth, is built up for several blocks even with the building line; that Wash street is straight and comparatively level east of Thirteenth street for ten or twelve blocks.

On plaintiff's behalf the evidence tends to prove that on October 1, 1901, about 3:30 p. m., plaintiff was driving a blind horse harnessed to a one-horse spring wagon north on Thirteenth street; that when he reached the crossing of Wash street he heard no bell and did not look east for a car until his horse was within a few feet of the south rail of the track when he saw a car coming from the east close upon him; that he then turned his horse west to avoid a collision but was not quick enough and the car struck the wheel of the wagon and overturned it, throwing plaintiff out; that the damage to the wagon was $ 22, to its contents (eggs and glassware) about $ 14, and to the horse about twenty-five or thirty dollars; that plaintiff's head was cut and he was otherwise bruised and injured, suffered pain and was laid up for a considerable length of time and was unable to attend to his business.

In the wagon with plaintiff was Ben Lewandowski, who, in respect to the accident, testified as follows:

"As we were going north on Thirteenth street, with the intention of going to Biddle street, we got close to Wash street when Mr. Sepetowski noticed a car coming, and we were both about--well, I don't know exactly how many feet away from the track--and all of a sudden Sepetowski turned the horse around and switched off on the left-hand side of the south side of the street. Just then by switching around, the car hit the wheel and the horse, and knocked the horse down and shoved the wagon up--pushed it up quite a piece--and Mr. Sepetowski was thrown out, and I was thrown out, and I lit on my feet. I was thrown out of the wagon but I lit on my feet."

The evidence further tends to show that plaintiff was driving along in a jogging trot without looking or listening for a car and that he did not see the car until it was so close upon him that he could not avoid the collision. The evidence also tends to show, on the part of plaintiff, that no warning signal was given as the car approached the crossing of Thirteenth street; that the motorman saw, or could have seen, the plaintiff, if he had looked, at least seventy feet from the crossing; that a car running at ordinary speed could be stopped within from seventy to eighty feet, but that the motorman made no effort to stop the car or check its speed until after the wagon was struck and that he did not then stop until it had run about one hundred and fifty feet.

On the part of the defendant, the evidence tends to show that the warning signal was given as the car approached the crossing of Thirteenth street; that the motorman saw the plaintiff when the car was about fifty feet from the crossing and that he made every effort in his power to stop it but on account of the nearness of the wagon was unable to do so in time to avoid the collision.

For the plaintiff the court instructed the jury as follows:

"1. Gentlemen of the jury: The plaintiff in this case did not,...