Wacker v. St. Louis Transit Co.

• Citation: 84 S.W. 138,108 Mo. App. 645
• Parties: WACKER v. ST. LOUIS TRANSIT CO.
• Decision Date: 13 December 1904
• Court: Court of Appeal of Missouri (US)

84 S.W. 138

108 Mo. App. 645

WACKER v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTION FOR JURY — WEIGHT OF EVIDENCE — INSTRUCTIONS.

1. Where plaintiff in an action for injuries establishes a case entitling him to go to the jury, and defendant introduces evidence showing that the injuries were the result of plaintiff's contributory negligence, the question of contributory negligence is one for the jury.

2. The question of the preponderance of the evidence is one of fact for the jury.

3. In an action for injuries, a charge that there are several specified acts of negligence alleged in the petition, and it is necessary for the jury to concur as to at least one of the special acts before they can find for plaintiff, is properly refused.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by Julius C. Wacker against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Scullin & Chopin, for respondent.

REYBURN, J.

Plaintiff sustained personal injuries consequent on a collision between the one-horse wagon, which he was driving under employment by the Hyde Park Brewery, and a car of defendant. On the 29th of September, 1903, about 4 o'clock p. m., plaintiff was proceeding eastwardly on Spruce street, and, upon reaching a point in that street near the alley between Sixth and Seventh streets, he looked northwardly across the vacant lot at northwest corner of Sixth and Spruce streets, but neither saw nor heard any south-bound car. He continued driving at a trot till Sixth street was near when he checked his horse and again looked northward for any approaching car. At this time a large wagon of the transfer company, about 20 feet long and 12 feet high, covered with tarpaulin, had intervened, moving west, when he looked the second time. As he diverged into Sixth street, a candy wagon was fastened to a post about 60 feet south, obstructing the west side of the street, perceiving which, immediately on leaving Spruce street, he traveled along the western railroad track, and drove about 70 feet southward, and was just pulling out of the track around the stationary wagon when the beer wagon was struck on the left rear end and hurled against the candy wagon, and finally left lying in the street south of the candy wagon and between the track and pavement. Plaintiff's testimony to the foregoing effect received corroboration in substantial details from eyewitnesses of the casualty, and his claim that no bell or gong was sounded was in like manner afforded support and confirmed. The spectators examined variously estimated the distance separating the car from the wagon, when first observed by them, at from 40 to 80 feet, and the speed of the moving car at from 15 to 20 miles per hour; and a former motorman declared that, under the facts exhibited in this case, a car could be stopped in 40 or 50 feet, with safety to the passengers and without injury to the car, by diligent use of the appliances provided. The testimony of the witnesses examined on behalf of the...