Beier v. St. Louis Transit Co.

• Decision Date: 19 June 1906
• Citation: 94 S.W. 876,197 Mo. 215
• Parties: BEIER v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

94 S.W. 876

197 Mo. 215

BEIER v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

June 19, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.

Affirmed.

Glendy B. Arnold for appellant; Boyle & Priest and George W. Easley of counsel.

(1) A verdict will not be allowed to stand which rests upon a charge of negligence not sustained by the evidence. Dowell v. Guthrie, 99 Mo. 662; Murray v Railroad, 101 Mo. 240; O'Malley v Railroad, 113 Mo. 325; Pueschell v. Wire Works, 79 Mo.App. 464; Markowitz v. Railroad, 186 Mo. 350; Engleking v. Railroad, 187 Mo. 164; Zumault v. Railroad, 175 Mo. 288; Cicardi v. Railroad, 108 Mo.App. 462. There must be evidence to show that the car could have been stopped after the danger of a collision became apparent. Zurfluh v. Railroad, 46 Mo.App. 642; Roenfeldt v. Railroad, 180 Mo. 554; Reno v. Railroad, 180 Mo. 469; Engleking v. Railroad, 187 Mo. 165; Theobald v. Railroad, 191 Mo. 395; McGauley v. Railroad, 179 Mo. 583. In this case there is no certain testimony of persons qualified to speak as to the rate of speed of the car. Theobald v. Railroad, supra; Helm v. Railroad, 185 Mo. 212. The collision raised no presumption of negligence against defendant. Grocer Co. v. Railroad, 89 Mo.App. 541. (2) The court erred in giving plaintiff's first instruction. This instruction presents an issue not made by the averments. "It is the duty of the court, by its instructions, to confine the jury to the consideration of the specific grounds of negligence alleged in the petition, and not by its instruction to widen the issue so as to allow a recovery on a negligent act not set up in the declaration." Heinzle v. Railroad, 182 Mo. 528; Schlereth v. Railroad, 96 Mo. 509; Wilburn v. Railroad, 26 Mo.App. 203; Jacquin v. Railroad, 57 Mo.App. 320. (3) The court erred in refusing to permit defendant to introduce in evidence the written statements of Strolle and Meuser. Clancy v. Railroad, 192 Mo. 615. (4) The court erred in permitting witness Tiemann to relate part of the conversation between him and defendant's motorman after the collision.

Fred A. Wind and Adolph R. Grund for respondent.

(1) (a) Plaintiff's instruction is based on the negligence charged in the petition. Schafstette v. Railroad, 175 Mo. 154; Klockenbrink v. Railroad, 172 Mo. 690; Dezel v. Railroad, 101 Mo.App. 56. (b) If it were otherwise appellant would not be heard to complain, because it adopted the same theory in instructions given at defendant's request. Iron Mt. Bk. v. Armstrong, 92 Mo. 279; Phelps v. City of Salisbury, 161 Mo. 14. (2) Speed may be reckless, although less than that permitted by ordinance. Nier v. Railroad, 12 Mo.App. 35; Holden v. Railroad, 177 Mo. 471; Heinzle v. Railroad, 182 Mo. 555; Jett v. Railroad, 178 Mo. 673; Schafstette v. Railroad, 175 Mo. 154; Klockenbrink v. Railroad, 172 Mo. 690. (3) (a) It was unnecessary to offer any direct evidence within what distance a car could be stopped. Ryan v. Railroad, 100 Mo. 233; Sweeney v. Railroad, 150 Mo. 397. (b) But the testimony of motorman and conductor showed the car could be stopped in eight to twelve feet on slippery track. (4) It was not error to exclude statements offered by way of impeachment. There was no evidence that any artifice was used to induce defendant to use the witnesses. Feary v. O'Neill, 149 Mo. 473. (a) The testimony of Stolle was merely corroborative of the testimony given for plaintiff, and the mere fact that defendant offered the witness did not lend more weight to his testimony. (b) The testimony of Meuser certainly could do no harm to the defendant; and the fact that it did not help defendant certainly did not entitle defendant to present a voluntary unsworn statement as evidence in its behalf, after its truth had been repudiated. (c) The full effect of the statements was obtained by asking witnesses if they had not made certain statements in writing, and by the instructions given for defendant. (5) The case having been submitted on theories presented by defendant, and the verdict being sustained by substantial evidence, this court will not weigh the evidence. Tucker v. Railroad, 54 Mo. 177; Williams v. Railroad, 109 Mo. 475; Bray v. Kemp, 113 Mo. 554; State v. Richardson, 117 Mo. 590; Weller v. Wagner, 181 Mo. 159; Metley v. Hill, 155 Mo. 256; Irwin v. Woodman, 104 Mo. 407; Bureu v. Railroad, 104 Mo.App. 224. (6) The verdict and judgment are for the right party and should be upheld. McGrew v. Nugent, 105 Mo. 161; Boggess v. Railroad, 118 Mo. 328; Williams v. Mitchell, 112 Mo. 315; Jones v. Jones, 131 Mo. 194; Schafstette v. Railroad, 175 Mo. 154; Winters v. Railroad, 99 Mo. 518; Klockenbrink v. Railroad, 172 Mo. 690.

LAMM, J. Brace, P. J., and Valliant, J., concur; Graves, J. not sitting.

OPINION

LAMM, J.

On December 23, 1903, plaintiff recovered judgment for $ 9,000 in an action for damages sounding in tort, and defendant prosecuted 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 twelve 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 times hereinafter stated, a public highway in the city of St. Louis, Missouri; 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 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 wagon 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 incline, 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 mortorman 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, 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...