99 S.W. 58 (Mo.App. 1907), Campbell v. St. Louis Transit Co.
|Citation:||99 S.W. 58, 121 Mo.App. 406|
|Opinion Judge:||BLAND, P. J.|
|Party Name:||CAMPBELL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant|
|Attorney:||Boyle & Priest, George W. Easley and Edward T. Miller for appellant. Guy A. Thompson and A. R. Taylor for respondent.|
|Case Date:||January 08, 1907|
|Court:||Court of Appeals of Missouri|
Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
(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.
(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.
[121 Mo.App. 408]
--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...
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