Binsbacher v. St. Louis Transit Co.

• Decision Date: 18 October 1904
• Citation: 108 Mo. App. 1,82 S.W. 546
• Parties: BINSBACHER v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

82 S.W. 546

108 Mo. App. 1

BINSBACHER v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

October 18, 1904.

STREET RAILWAYS—INJURY TO PASSENGER— COLLISION OF CARS—EVIDENCE—OPINION.

1. The answer of a witness, who, after testifying that he did not see what broke the window of a street car in which he was a passenger, was asked if he could describe the noise that he heard, stated that it sounded to him like a collision of the car; that was his impression of it—is not open to the objection of being opinion evidence.

2. Evidence in an action for injury to a passenger in a street car by the breaking of a window therein, held sufficient to go to the jury on the claim of plaintiff that it was caused by the collision of that and another car while passing at a high speed, with a swaying motion, on a curve.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

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

W. R. Gentry and Boyle, Priest & Lehman, for appellant. Peter T. Barrett and Geo. Dougherty, for respondent.

BLAND, P. J.

On February 1, 1903, respondent was a passenger on one of appellant's cars traveling west over Olive street, in the city of St. Louis. He occupied a seat at or near the front end of the car. The car had approached the neighborhood of Channing avenue, when the second window from the front of the car on the south side was struck or jarred by some outside force with such violence as to break the glass into small fragments and hurl them into the car. Some of the pieces of glass struck plaintiff in the face, cutting the flesh, and injuring one of his eyes. For these injuries he recovered a judgment in the circuit court for $225, from which the defendant company appealed.

There are two assignments of error alleged to have been committed at the trial. The first is the court erred in permitting Edward Bickley, a witness for plaintiff, to give what appellant calls expert testimony, and the second is the court erred in refusing to grant defendant's instruction, in the nature of a demurrer to the evidence, offered at the close of plaintiff's evidence and again at the close of all the evidence. The theory of the plaintiff (sustained by the verdict) is that the window was broken by the car being butted or rubbed against an east-bound car running on a parallel track in the same street as the two cars passed each other on a curve near Leonard avenue. Bickley testified that he was about the middle of the car, standing in the aisle. He described the scene as follows: "Q. Did you see what shattered the glass in the window? A. I did not see; no. I heard a noise, and the noise came from the direction of the front of the car, as near as I could locate it; and the glass seemed to be shattered diagonally from the upper front corner to the lower rear corner of the glass, and was shattered in very small fragments, and hurled quite a distance. Q. Can you describe the noise that you heard? A. Well, it sounded like a collision of the roof of the car to me. That was my impression of it." Defendant moved to strike out the answer as being a conclusion, and not responsive to the question. Motion overruled, to which ruling of the court defendant then and there duly excepted.

1. It is contended that the answer to the second question is opinion evidence, and should have been stricken out. The witness did not say there was a collision, but that his impression was that the noise he heard at the moment the window was broken sounded to him like a collision. The sense of hearing is not an exceptional sense. All normal beings are endowed with it. This sense is cultivated by one person as much as by another. Its training or education is not peculiar or exceptional, and impressions made by the hearing of a noise, as to its cause or orgin, are common to all mankind, and admissible as evidence...