Petersen v. St. Louis Transit Co.

• Citation: 97 S.W. 860,199 Mo. 331
• Parties: HANS CHRISTIAN PETERSEN v. ST. LOUIS TRANSIT COMPANY, Appellant
• Decision Date: 21 November 1906
• Court: United States State Supreme Court of Missouri

97 S.W. 860

199 Mo. 331

HANS CHRISTIAN PETERSEN v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

November 21, 1906

Appeal from Cole Circuit Court. -- Hon. Jas. E. Hazell, Judge.

Affirmed.

Boyle & Priest and Morton Jourdan for appellant.

(1) The court should have given the instructions in the nature of a demurrer to the testimony and directed a verdict at the close of the plaintiff's case. Kreis v. Railroad, 148 Mo. 321; Roenfeldt v. Railroad, 180 Mo. 554; Payne v. Railroad, 136 Mo. 534; Ross v Railroad, 88 S.W. 144. (2) The court should have directed a verdict at the close of the entire case and given the instruction asked by the defendant at that time, in the nature of a demurrer to the testimony. Roenfeldt v Railroad, 180 Mo. 554; Kreis v. Railroad, 148 Mo. 321; Payne v. Railroad, 136 Mo. 534; Ross v Railroad, 88 S.W. 144. (3) The great multitude of instructions given by the court were confusing and misleading, and because of such erroneous conduct upon the part of the court in giving to the jury in a case of this character twenty-seven instructions, the judgment should be reversed. Sidway v. Live Stock Co., 163 Mo. 342; Hickman v. Link, 116 Mo. 123; Crawshaw v. Sumner, 56 Mo. 517. (4) The first instruction given by the court was error, for the reason that it was too general and it licensed the jury to find a verdict against the defendant because of any omission in the performance of the duty of the motorman which might be found by the jury, whether it was one of the acts of negligence contained in the petition or not. Murray v. Railroad, 176 Mo. 183; Hartman v. Railroad, 87 S.W. 88. (5) The court committed error in submitting to the jury the question of ordinary care upon the part of the plaintiff, to avoid the danger and injury, because there was no testimony upon which to predicate such instruction. De Donato v. Morrison, 160 Mo. 581; Glass v. Gelvin, 80 Mo. 297; Ely v. Railroad, 77 Mo. 34. (6) Instruction 6 is indefinite and uncertain and misleading. The petition avers affirmatively the ordinary care upon the part of the plaintiff, and yet this instruction tells the jury in effect that the burden of proof is upon defendant to show a want of care upon the part of plaintiff. Liese v. Meyer, 143 Mo. 547; Railroad v. Wishert, 89 S.W. 460. (7) Instruction 7 tells the jury that "if the plaintiff was thrown out and was injured as a natural and direct result of the running away of his horse, and of said collision, then the said injury to plaintiff was a direct consequence or result of said collision." This is confusing and misleading. (8) There is no verdict in this case, such as is contemplated by the law. The verdict returned into court was signed by eight members of the jury in their individual capacity as jurors. That it was not the verdict of the jury is shown by the affidavits filed with the motion for new trial of three members of the jury. Under instruction 9, it was the duty of the jury, if nine of the number agreed upon the verdict, to sign the same. While it is true L. D. Gordon signed it, it was as foreman, he signed it in his official capacity, and not as one of the nine. That he had no right to sign a verdict as its official head and for the rest of the jury is shown by the affidavits of Harding, Lockett and Price. For this reason, the judgment rendered upon this alleged verdict should be reversed.

Richard F. Ralph and Barclay, Shields & Fauntleroy for respondent.

(1) The instruction in the nature of a demurrer to the evidence could not properly have been given. There is conclusive evidence of several acts of negligence of defendant. Defendant's motorman admits that he did not ring the bell when he "saw the buggy coming towards the track." Such negligence is actionable. Schmidt v. Railroad, 163 Mo. 645. The same motorman, as a witness for defendant, admitted that he saw, in a position of danger (near enough to the track to be hit) the buggy in which plaintiff was riding, at a distance of 25 or 30 feet in front of the car; that he could have stopped the car at the rate at which it was then going (six miles per hour, according to him) within a distance of 10 or 15 feet. He also states that he did not stop the car in time to avoid the collision, but that it ran 90 feet beyond the point of contact after the car hit the buggy. Such negligence is actionable. Defendant had no exclusive right to the public street. Kennayde v. Railroad, 45 Mo. 262; Klockenbrink v. Railroad, 172 Mo. 678; Schafstette v. Railroad, 175 Mo. 142. (2) No demurrer to the evidence should have been sustained at the close of the entire case for the reasons above given and a further reason: there was no evidence of negligence on the part of the plaintiff as a matter of law, and the jury found that he was not negligent as a matter of fact. The question of plaintiff's negligence was obviously a question of fact in the circumstances. Peterson v. Railroad, 114 Mo.App. 374; Kellny v. Railroad, 101 Mo. 67; Fearons v. Railroad, 180 Mo. 208. (3) The first instruction for the plaintiff was within the allegations of the petition. It was furthermore supported by the admissions of the defendant's witness, the motorman, and was correct in point of law. It is actionable for a street car to run down a buggy, moving in the same direction in a public street, when by ordinary care in operating the car the collision can be avoided. Buren v. Railroad, 104 Mo.App. 224; Esler v. Railroad, 109 Mo.App. 580. (4) It would have been serious error if the court had undertaken to decide that plaintiff was guilty of negligence. He was a green foreign boy, sixteen years old, only a few months in this country, sitting in a buggy beside his uncle, his guardian, who was driving. Under repeated decisions of this court (which settle the law beyond question) plaintiff was not chargeable with the negligence of his uncle, who was driving the horse; to say nothing of the difference in their ages and relations to each other, in respect to the matter of control. Plaintiff appears to have acted with reasonable prudence, the jury so found under instructions of both parties. No negligence of the driver of the buggy can properly be imputed to the plaintiff. Becke v. Railroad, 102 Mo. 544; The Bernina, 13 App. Cas. (L. R.) 1; Sluder v. Railroad, 189 Mo. 107.

BRACE P. J. Graves, J., not sitting.

OPINION

BRACE, P. J.

This is an action for damages for personal injuries, in which the plaintiff obtained judgment below for $ 5,000, and the defendant appeals.

About 11 o'clock on the morning of the 29th of December, 1901, the plaintiff, then a minor, aged about sixteen years, was in a close covered storm buggy, drawn by one horse, driven by his uncle Ole Petersen, going in an easterly direction on Clark avenue between 21st and 22nd streets, in the city of St. Louis, when the buggy was run into and struck from behind by one of defendant's cars, going in the same direction, causing the horse to run away and throw the plaintiff upon a pile of rocks on the sidewalk in Twenty-first street, whereby his skull was fractured, the right eye so injured as to destroy its vision, and he was otherwise injured.

The petition alleges that his injuries were caused by the negligence of the defendant's servants in charge of the car. The specific acts of negligence charged are, in substance, a breach of the vigilant watch and speed ordinances, a reckless and unlawful rate of speed, failure to give any warning signals, and to exercise ordinary care to prevent the collision.

The answer was a general denial, with a plea of contributory negligence, upon which issue was joined by reply.

At the close of the plaintiff's evidence the defendant demurred thereto, and, upon the demurrer being overruled, introduced its evidence in defense, and at the close of all the evidence renewed its demurrer; and the first question presented for determination is whether upon all the evidence the court erred in submitting the case to the jury.

I. The evidence for the plaintiff tended to prove that he was a young Dane who had been in this country only about three months, who could not speak the English language and had to be examined through an interpreter; that the buggy and horse was owned and being driven by his uncle, Ole Petersen, a citizen of mature years, doing business on Clark avenue; that Clark avenue is a narrow street running east and west, about thirty feet wide between the sidewalks; that defendant had a single track in the center of the street, occupying a space of about six feet of its width and leaving a space of about twelve feet on either side; that on its track cars were run but one way, from west to east; that Twenty-first Twenty-second and Twenty-third streets run north and south, crossing Clark avenue at right angles in a densely populated part of the city; that the width of these streets is between fifty and sixty feet, and the length of the blocks on the avenue between them is about three hundred feet; that Ole Petersen drove the buggy south on Twenty-second street to its intersection with Clark avenue, looked west, as did his nephew, the plaintiff, and, seeing no approaching car within the distance of a block, turned east on Clark avenue and drove down that street in a walk or slow trot close to the north rail of the track, and as he was in the act of crossing the track diagonally some forty or fifty feet east of the crossing the horse and buggy were struck by defendant's car going east, which ran about one hundred feet further before it stopped; that neither the plaintiff nor his uncle looked back behind them for an approaching car after they turned east on Clark avenue; that the maximum rate of speed prescribed for street cars was eight miles per hour; that the car was...