American Storage & Moving Co. v. St. Louis Transit Co.
| Decision Date | 16 October 1906 |
| Citation | 97 S.W. 184,120 Mo.App. 410 |
| Parties | AMERICAN STORAGE & MOVING COMPANY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
AFFIRMED.
Judgment affirmed.
George T. Priest for appellant.
It is error to submit to the jury in an instruction an issue, which there is no evidence to support. There was no evidence that the car was driven at a dangerous and reckless speed. Holden v. Railroad, 177 Mo. 456.
Davidson & Russell for respondents.
There is nothing in defendant's contention that plaintiff's instruction numbered 4, allowing a recovery for the damage to the goods belonging to another which were damaged in this collision, was erroneous. It is immaterial on what ground the learned judge permitted this recovery, and it is of no importance whether his holding that plaintiff was a common carrier was correct or not, because a simple bailee may maintain an action for injury to goods in his possession. Railroad v. Railroad, 78 Mo.App. 245; State v Moore, 101 Mo. 316.
--Action to recover damages to two horses, a set of harness, a moving van and a van load of furniture, caused by a collision between the van and one of defendant's street cars, on Hamilton avenue, in the city of St. Louis, on the 26th day of March, 1904. The United Railways Company was joined as a defendant but the suit as to it was dismissed by the plaintiff at the close of its evidence, and the trial proceeded against the Transit Company, resulting in a verdict and judgment in plaintiff's favor for $ 138.20, from which defendant appealed.
On the part of the plaintiff, the evidence tends to show that it is engaged in the business of moving and storing furniture and household goods; that on March 26, 1904, one of its moving vans, loaded with furniture, was traveling south on the west track on Hamilton avenue, which runs north and south, at about nine o'clock p. m., when it was struck by a street car traveling in the same direction, with such force as to wreck the van, make kindling wood of the furniture and throw the horses on the street, injuring them and tearing up the harness. Plaintiff's evidence is that the moon was shining and the street lamps at all the street crossings were lighted, affording sufficient light to have enabled the motorman to see the van for three or four hundred feet, if he had looked. A number of witnesses for the plaintiff, in a position to hear, had the gong been sounded, testified that it was not sounded, and two of them testified that the car was traveling at the very rapid rate of speed--one of them placing the speed at thirty miles an hour. The driver of the van testified he did not hear the car or gong and was unaware of the approach of the car until it struck the van; that he had been traveling on the west track for four or five blocks and had looked back several times, but did not see a car approaching; that on account of the street being torn up and obstructions placed in it, he was compelled to drive on the railroad track.
The defendant's evidence tends to prove that the night was dark, and the street poorly lighted. The motorman testified he did not see the van, although he kept a vigilant watch ahead, until his car was within thirty-five or forty feet of it, too short a space in which to stop or check the speed of the car and avoid the collision. This witness also testified that when he saw the van it was traveling on the east track, and the driver turned diagonally across the street and drove on the west track, immediately in front of his car. Both the motorman and conductor testified that the going was sounded at the approach of each street crossing and again at or about midway of each block as the car traveled south.
The negligence alleged in the petition was, running the car at a dangerous and reckless speed, and the failure of the motorman to sound the gong or give other warning of the approach of the car.
1. In the first instruction given for plaintiff, it was submitted to the jury to find whether or not the car was running at a dangerous and reckless speed. Defendant contends that the submission of this issue was erroneous, for the reason there is no evidence tending to show the car was running at a dangerous and reckless speed. It is well-settled law that an issue, though raised by the pleadings, should not be submitted to the jury unless there is some evidence in support of it. What would be a dangerous and reckless speed of a street car depends largely upon circumstances. A speed of less than eight miles per hour on a street thronged with pedestrians crossing and recrossing the street, would be a dangerous and reckless rate of speed,...
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