Rapp v. St. Louis Transit Co.

• Decision Date: 28 June 1905
• Parties: RAPP v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

88 S.W. 865

190 Mo. 144

RAPP v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

June 28, 1905.

1. STREET RAILROADS—NEGLIGENCE — QUESTION FOR JURY.

In an action against a street railroad company for injuries to plaintiff in a collision between his vehicle and a car, held, that the question of defendant's negligence was one for the jury.

2. SAME—CONTRIBUTORY NEGLIGENCE.

In an action against a street railroad company for injuries to plaintiff in a collision between his vehicle and a car, held, that the question of plaintiff's contributory negligence was one for the jury.

3. MUNICIPAL CORPORATIONS — ORDINANCE —REGULATIONS OF STREET RAILROAD—ACTION FOR INJURIES—PLEADING.

In an action for injuries to plaintiff in a collision between his vehicle and a street car, the petition alleged negligent operation of the car, and also alleged negligence of defendant's motorman in failing to keep such "vigilant watch" for vehicles and persons as was required by a certain ordinance. Held, that it was proper to refuse to require plaintiff to elect whether he would stand on the allegations as to general negligence, or on the allegations as to the ordinance.

4. SAME—UNITING ACTIONS EX CONTRACTU AND EX DELICTO.

The petition was not open to the objection that it combined in one count a cause of action ex contractu and one ex delicto.

5. STREET RAILROADS — NEGLIGENCE—INJURIES—ACTION—INSTRUCTIONS.

In an action against a street railroad company for injuries to plaintiff in a collision between his vehicle and a car, plaintiff's evidence tended to show that, while his horses were on defendant's track, defendant's servants negligently caused the collision; and the defense was that plaintiff negligently assumed such position when a collision could not have been avoided by ordinary care. The court instructed for plaintiff that though plaintiff, while trying to get his wagon out of a hole in the street, got it on the track, yet if defendant's motorman saw the danger, and could, by the exercise of ordinary care, have prevented the collision, but failed to do so, plaintiff was entitled to recover, even if he did not exercise ordinary care in pulling his horses on the track. An instruction for defendant was that if the motorman saw the horses near the track, but so far away as not to be in danger, the motorman had the right to assume that they would remain there, but that if thereafter plaintiff's horses changed their position, and got in front of the car, and thereby directly contributed to the injuries, and the motorman could not have stopped the car and avoided the accident, plaintiff could not recover. Held, that the instructions, taken together, properly presented the issues.

6. SAME—NEGLIGENCE — DISCOVERED PERIL.

Though one may have been guilty of contributory negligence in being on a street car track, the company is liable for any injury it could have prevented by ordinary care after the discovery of the danger.

7. NEGLIGENCE—INJURIES—DAMAGES.

In an action for injuries owing to the alleged negligence of defendant, it appeared that plaintiff was rendered unconscious, and his body bruised; that one of his feet was so crushed that it was necessary to amputate one of his toes and a part of another one; that he would always be crippled more or less; that he suffered great pain, was confined to his bed for five months, and obliged to use crutches for about six weeks, and that his surgeon's bill was between four and five hundred dollars. Held, that a verdict for $6,000 was not excessive.

In Banc. Appeal from Circuit Court, St. Charles County; E. M. Hughes, Judge.

Action by George Rapp against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. A. R. Taylor, for respondent.

BRACE, C. J.

This is an appeal by the defendant from a judgment in favor of the plaintiff for the sum of $6,000 in an action for personal injuries. The cause of action stated in the petition is as follows: "That on the 1st day of February, 1901, the plaintiff was lawfully driving a team of horses attached to a loaded wagon northward on Broadway at its intersection with Buchanan street, when the wheels of the wagon he was so driving went into a hole in said streets at their intersection, and said team were unable to pull the wagon further, and became stalled, and, in endeavoring to get said wagon pulled out of said hole, said team were upon the track of the defendant, St. Louis Transit Company, and whilst said team were so on the track of said St. Louis Transit Company on said streets at said place, and whilst said wagon and the wheels thereof were at and near said defendant's track, the defendant St. Louis Transit Company's motorman and conductor in charge of its south-bound car carelessly and negligently, and without using ordinary care to control or stop said car, caused and suffered said car to collide with said team and a part of said wagon, whereby plaintiff was thrown from said wagon to the street, and one of the horses of said team was thrown and fell upon the plaintiff, greatly and permanently injuring plaintiff upon his body, legs, and feet, causing a concussion of the brain, which rendered him unconscious. His foot was thereby crushed, bruised, and injured, and the bones thereof, and the ligaments, tendons, muscles, and flesh thereof, were fractured, ruptured, displaced, and torn, and plaintiff was permanently injured thereby. And for another and further assignment of negligence of defendant, St. Louis Transit Company, the plaintiff avers that at the time of his said injuries there was in force in the city of St. Louis an ordinance of said city, whereby it was provided that motormen and conductors of street cars should keep a vigilant watch for vehicles and persons either on its track or moving towards it, and, upon the first appearance of danger to such vehicle or person, the car should be stopped within the shortest time and space possible; and plaintiff avers that, at the time of said collision and his injuries, defendant's motorman and conductor in charge of its said car failed to keep such vigilant watch, and failed to stop said car within the shortest time and space possible upon the first appearance of danger to said vehicle and plaintiff, which violation of said ordinance directy contributed to cause said collision and plaintiff's said injuries." The answer was a general denial and the following plea: "For another and further defense to said petition, defendant avers that whatever injuries the plaintiff sustained were occasioned by his own carelessness and negligence in driving in front of defendant's moving car while the same was in close proximity to him." The facts in the case disclosed by the evidence are substantially as follows: The plaintiff, a young man aged about 24 years, in the employ of one Marten as driver of a coal wagon at $10.50 per week, was on the 1st day of February, 1901, driving a two-horse team and wagon loaded with coal on Broadway, in the city of St. Louis, on which street the defendant operates its street cars upon two tracks; north-bound cars going on the east track, and south-bound cars on the west track. The plaintiff was driving north on the west side of Broadway, parallel with and distant from the west track about three feet. When near the intersection of Broadway with Buchanan street, the front wheels of his wagon went into a hole in the street, and his team stalled. He succeeded in getting the front wheels out, but, when the hind wheels went into the hole, in order to extricate them he had to swing his horses towards the east across the west track, which brought the fore wheels against or very near the west rail of that track; and when he had done so, and the wagon and team were in this position, the plaintiff, standing on the doubletrees, urging his horses to the pull, the team was struck by one of defendant's south-bound cars, the wagon turned around, the plaintiff thrown under one of the horses, rendered unconscious, one of his feet mashed, and his body otherwise bruised. From the injury to his foot he suffered great pain, was confined to his bed for five months, afterwards used crutches for about six weeks, and then a cane for about two weeks, and since has been able to walk without either; but, when the foot touches anything hard, it hurts. He was under surgical treatment eight months. The surgeon who attended him testified that the foot had been crushed and laid open; that there was a cut extending from the tip of the large toe to the upper part of the foot; that blood poisoning set in, the tissues sloughed off, and amputation of the big toe became necessary; that in cutting off the toe it became necessary to clip one of the phalanges or end bones that protruded, and that he will always be crippled more or less; that the charges for his services are between four and five hundred dollars; and that they are reasonable. It was daylight when the accident happened. The track was level. The view north for three or four blocks was unobstructed. The evidence for the plaintiff tended to prove that the defendant's car was going at the rate of 20 miles an hour; that no effort was made to stop the car or check its speed before the team was struck, and that it went 30 or 40 feet after the team was struck before it was stopped; that the team was on the track some time before it was struck—plaintiff says, four or five minutes. Three other witnesses testify that the plaintiff's team was on the track when they saw the defendant's car approaching at a distance of from 250 to 300 feet, that no effort was made to stop the car, and that its speed was not checked until after the collision. The plaintiff's evidence further tended to prove that the car, going at the rate of 20 miles an hour, could have been stopped with the brakes in about 130 feet, and with the reverse in about 100 feet, and when going at the rate...