Beier v. St. Louis Transit Co.

• Decision Date: 30 May 1906
• Parties: BEIER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

94 S.W. 876

197 Mo. 215

BEIER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

May 30, 1906.

1. STREET RAILROADS — NEGLIGENCE — QUESTION FOR JURY.

In an action against a street railway for injuries received by plaintiff through a collision between his wagon and defendant's car, evidence examined, and held sufficient to go to the jury on the question of defendant's negligence.

2. EVIDENCE—RATE OF SPEED—OPINION EVIDENCE.

In an action against a street railway for injuries resulting from a collision between plaintiff's wagon and defendant's car, expert evidence was not required to prove that the car was going fast at the time of the accident.

3. STREET RAILROADS—UNLAWFUL SPEED— ORDINANCES.

The speed at which a street car is running may be negligent speed, although ordinance speed or less, depending on the care required under the circumstances.

4. SAME—SUFFICIENCY OF EVIDENCE.

Where, in an action against a street railway for injuries received by plaintiff from having his wagon struck by another wagon with which defendant's car collided, there was evidence that the latter wagon straddled a rail of the track in advance of the car for 100 or 150 feet before the wagon was struck, and that the team drawing the same were walking, during which time the car must have moved several hundred feet, formal proof that the car might have been stopped in time to avoid the injury was unnecessary.

5. SAME—FAILURE TO SIGNAL—INSTRUCTIONS.

In an action against a street railway for injuries to plaintiff in a collision between his wagon and defendant's car, the petition charged defendant with so negligently, carelessly, and unskillfully operating said car and permitting it to move rapidly that it suddenly and with great force ran into a wagon, etc., forced the same against plaintiff's wagon, etc., and further counted on the theory that it was defendant's duty to keep control of the car under the circumstances, and to signal the approach of the car by ring of bell; that defendant negligently omitted those duties; and that its motorman knew, or by the exercise of ordinary care would have known, that the car and wagon would collide at the place of the accident. Held, that defendant's negligence was not alone predicated in the petition of the rapid speed and failure of defendant to ring the bell, and an instruction taking unlawful speed and the ringing of the bell from the jury, and charging that if defendant's motorman saw, or by the exercise of reasonable care and diligence would have seen, in time to have stopped the car, that an accident was imminent, and that he failed to exercise reasonable care and diligence to stop the car, defendant was liable, was proper.

6. WITNESSES—PRIOR CONTRADICTORY STATEMENTS—ADMISSIBILITY.

By merely issuing a subpœna for a witness, and by not putting him on the stand, a party did not mislead the adverse party so as to justify the admission of evidence that such witness had, before going on the stand for the adverse party, made contradictory statements.

7. SAME.

Where, in an action for injuries through negligence, no collusion between plaintiff and certain witnesses was shown, and defendant neither made an affidavit of surprise nor showed that, during the two years elapsing between certain statements made by the witnesses and the trial, it had endeavored to ascertain whether such statements were remembered or would be sustained by the witnesses under oath, merely showing that one of the witnesses was a gardener, as was plaintiff, the statements were not admissible in evidence on the witnesses testifying contrary thereto.

8. SAME—ADMISSIONS TO PREVENT CONTINUANCE—CONTRADICTORY EVIDENCE.

Under the express provisions of Rev. St. 1899, § 687, where the facts set out in an affidavit for a continuance are read as the evidence of an absent witness, the opposite party may disprove the facts disclosed or prove any contradictory statements made by such witness in relation to the matter in issue and on trial.

9. APPEAL—REVERSAL—IMMATERIAL ERROR.

A judgment will not be reversed for error not materially affecting the merits.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Ernest Beier against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle & Priest, Geo. W. Easley, and Glendy B. Arnold, for appellant. Fred A. Wind and Adolph R. Grund, for respondent.

LAMM, J.

On December 23, 1903, plaintiff recovered judgment for $9,000 in an action for damages sounding in tort, and defendant prosecutes its appeal, raising no question on the amount of damages, but assigning for error the giving of instructions for plaintiff, the refusal of its own peremptory instruction, and the exclusion and admission of testimony.

Plaintiff was injured and his wagon and harness destroyed on the 21st of December, 1901, toward high 12 of that day, by the alleged negligence of defendant, a street railway company, and the charging part of his petition, in one paragraph, is as follows: "Plaintiff further states that defendant ran a part of its cars upon tracks laid on Gravois Road, which was at the time hereinafter stated a public highway in the city of St. Louis, Mo.; that while plaintiff was driving in a westerly direction along said Gravois Road in the city of St. Louis, on the north side thereof, outside of and beyond the tracks of defendant, the motorman in charge of a car of said defendant, to wit, Cherokee No. 74, so negligently, carelessly, and unskillfully operated said car that it suddenly and with great force ran into a wagon then being driven in a westerly direction along the northern side of said Gravois Road in the city of St. Louis immediately in rear of the wagon on which the plaintiff was driving, as aforesaid, thereby forcing said last-named wagon and team attached thereto upon the wagon and team of the plaintiff, and the said team and wagon of the plaintiff was thereby caused to be driven over the embankment on the north side of Gravois Road; his wagon with his load of manure was upset, the plaintiff falling underneath same, and being seriously injured." In other paragraphs, it is charged as follows: "Plaintiff further states that it is the duty of the defendant to have its motorman, operating cars in the city of St. Louis, to carefully observe the highway upon which the car is being operated, and to keep said car under such control as will enable the motorman from colliding with persons or vehicles passing along the highway, and to warn persons upon the highway, who are in danger of being run over or into, of the approach of the car, in time to prevent a collision. Plaintiff further states that when said car started from or near the top of the hill on Gravois Road, on, to wit, December 21st, between the hours of 11 a. m. and noon, to go in a westerly direction, there were a number of teams being driven in the same direction along the north side of said road immediately adjoining the tracks upon which said car was running, and the motorman knew, or by the exercise of ordinary skill and care would have known, that said wagons or the loads thereon were liable to come in contact with a car attempting to pass said wagons, and particularly as they approached and were upon said bridge, and it was the duty of the motorman in charge of said car to go slowly down said decline, keep his car under full control so as to enable him to stop within a few feet should necessity require, and to notify each person of the car's approach by ring of bell, in time to prevent such person driving upon or near the car track, and enable persons to escape from danger. Plaintiff further states that the motorman in charge of the car aforesaid neglected his duties, and negligently and carelessly and unskillfully permitted said car to move rapidly, failed to keep such car under such control as would enable him to bring said car to a sudden stop within a short space, and failed to so ring his bell as to notify one Ebert, who was sitting upon a load of manure and driving upon the northern side of said Gravois Road in a westerly direction, of the car's approach in time to enable said Ebert to escape from danger and avoid a collision, and said motorman in charge of said car unskillfully, carelessly, and negligently ran said car, or permitted said car to be run, violently and with great force against the wagon and team in charge of said Ebert, and forced said wagon and team to move suddenly and rapidly along said road immediately in front of said car, and against the wagon and team in charge of plaintiff, which was immediately before said Ebert, with such violence that the plaintiff's team and wagon were forced over the embankment, the wagon upset with the plaintiff thereon, the wagon and harness broken, and the plaintiff severely and permanently injured." The answer was a general denial.

There was a sharp conflict on facts relating to the happening itself, but none on the environment—the physical characteristics of the locus—and, as said, the extent of the injuries to plaintiff stands confessed; the evidence tending to show he was crushed and permanently crippled. A description of the place and an understanding of the general facts are essential on the question of the degree of care due to travelers on that highway at that spot and that time, and, attending thereto, it is agreed on all sides to be as follows: Gravois Road is a macadamized thoroughfare in St. Louis, running east and west, on which are laid two tracks of defendant, the north track for west-bound cars, the south track for east-bound cars. On a hill on Gravois Road, and we infer at the junction of Grand avenue and Gravois Road, is a tavern called (properly, maybe, but this question is not here) the "House of the Good Shepherd." From this tavern west to the next street, Chippewa, or at least to a bridge, there is a sharp downgrade in the road and defendant's tracks for a distance of, say, 600...