Campbell v. St. Louis Transit Co.
| Decision Date | 08 January 1907 |
| Citation | 99 S.W. 58,121 Mo.App. 406 |
| Parties | CAMPBELL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Boyle & Priest, George W. Easley and Edward T. Miller for appellant.
(1) The court erred in giving plaintiff's instruction numbered 1. Smith v. Hardesty, 31 Mo. 411; Holwerson v Railway, 157 Mo. 216 and cases therein cited; Oates v. Railway, 168 Mo. 535; Guyer v. Railroad, 174 Mo. 344; Moore v. Railway, 176 Mo. 528; Railroad v. Railroad, 78 Mo.App. 253. (2) The court erred in giving plaintiff's instruction numbered 2. Authorities above cited under point 1. Kries v. Railroad, 148 Mo. 321. (3) The court erred in giving plaintiff's instruction numbered 3. Fisher v. Lead Co., 156 Mo 479. (4) The court erred in refusing defendant's requested in struction B. Grocer Co. v. Railway, 89 Mo.App. 534; Cogan v. Railway, 101 Mo.App. 179.
Guy A. Thompson and A. R. Taylor for respondent.
(1) A mere omission in an instruction given for one party is harmless if the element omitted is contained in an instruction given for the other party. Edwards v. Railroad Co., 94 Mo.App. 36; Anderson v. Railroad Co., 161 Mo. 411; Perrette v. Kansas City, 162 Mo. 238. (2) As to the objection to plaintiff's instruction numbered 3, it is urged that the court erred in giving this instruction because it was a mere abstract statement of the law. (3) And the instruction is a correct statement of the law, and is definitive of nothing more than the ordinary care required of a motorman of this car. Sluder v. Transit Co., 88 S.W. 643; Kolb v. Transit Co., 102 Mo.App. 143; Gebhart v. Transit Co, 97 Mo.App. 373.
--The appeal is from a judgment recovered by plaintiff in an action for personal injuries and damages to his automobile, caused by a collision with one of defendant's street cars, traveling west on Delmar avenue, on June 19, 1903, in the city of St. Louis. The evidence shows that Delmar avenue runs east and west, and at the time of the collision, defendant maintained and operated a double street car line in the center of said street; that Kingshighway runs north and south and crosses Delmar avenue at right angles; that on the day of the accident, plaintiff was driving his automobile north on the east side of Kingshighway (the west side being torn up for repairs) and when he arrived near the crossing of Delmar avenue, he turned to the west side of Kingshighway, the better to enable him to see east on Delmar and to ascertain if a car was coming from that direction. Plaintiff testified that from the west side of Kingshighway, he could see three hundred feet east on Delmar avenue and saw no car, and then turned back to the east side of the street and approached the crossing of Delmar at a speed of about six miles an hour, looking and listening all the while for a car; that when within about forty feet of the tracks, he saw a car about two hundred and forty feet east, coming at a speed of twenty-five to thirty miles per hour; that from the speed the car was traveling, he thought he could not clear the track in time to avoid a collision and immediately disconnected the power of his automobile, and did everything he could to stop it, but was unable to do so before it ran upon the track, where it was struck by the car, causing damage to the automobile and divers cuts, sprains and injuries to himself.
John Doyle, an experienced motorman, testified that a car running at a speed of fifteen or twenty miles per hour could be stopped in from one hundred to one hundred and twenty-five feet, and one running at a speed of twenty-five or thirty miles per hour in from one hundred and twenty-five to one hundred and fifty feet.
Plaintiff offered in evidence an ordinance of the city of St. Louis, limiting the speed of cars, at the point in question, to fifteen miles per hour; also what is commonly known as the vigilant watch ordinance. The evidence tends to show that the automobile weighed about one ton, and plaintiff testified it was in perfect condition.
William R. Morgan, a witness for defendant and an automobilist, testified that plaintiff's automobile, running at a speed of fifteen miles per hour, could have been stopped in about thirty feet, and at a speed of six miles per hour in about twenty feet.
Defendant's evidence tends to show that the automobile first came into view from behind a coal wagon when within ten feet of the track, and when the car was about the same distance from the crossing, and that the automobile was running as fast as the car; that when it first came into view the mortorman did everything in his power to stop the car and avoid a collision.
The petition assigns as negligence, first, that the motorman failed to keep a vigilant watch ahead for vehicles moving toward the track, etc., and failed to exercise ordinary care to stop the car and avoid the collision; second, that the car was operated at a dangerous and reckless speed; third, that the car was running at a speed exceeding fifteen miles per hour, in violation of a city ordinance (No. 21113). The answer was a general denial and the following plea of contributory negligence:
"Further answering said amended petition, defendant states that the injuries, if any, sustained by plaintiff, and the damage, if any, to plaintiff's automobile, were caused by the plaintiff's own negligence in approaching the track without looking and listening for street cars, or without heeding what he saw or heard, if he did look or listen; but, on the contrary, causing his automobile to be operated so carelessly and negligently as to bring it into collision with a street car."
Omitting formal and introductory matter, plaintiff's first instruction is as follows:
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