Burleigh v. St. Louis Transit Co.

• Decision Date: 14 May 1907
• Citation: Burleigh v. St. Louis Transit Co., 102 S.W. 621, 124 Mo. App. 724 (Mo. App. 1907)
• Parties: BURLEIGH v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

102 S.W. 621

124 Mo. A. 724

BURLEIGH v.ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. STREET RAILROADS—INJURIES TO TRAVELERS —COLLISION WITH FIRE TRUCK—NEGLIGENCE —QUESTION FOR JURY.

Where, in an action for injuries to a fireman in a collision between a hook and ladder truck and defendant's street car, there was evidence that the speed of the car was much too high to prevent a timely stop of the car after danger to the truck became apparent, and that with any proper use of the appliances at the motorman's command, after the peril arising from the truck could have been discovered, the car might have been stopped, such facts were sufficient to require submission of the issue of defendant's negligence to the jury.

2. SAME—CONTRIBUTORY NEGLIGENCE.

Plaintiff, while returning from a fire on a fire truck, was injured in a collision between his truck and an approaching street car.Plaintiff was not driving, and only saw the car when 50 feet away by looking over the top of the truck, after which he attempted unsuccessfully to get away.Held, that it was not incumbent on plaintiff to keep a vigilant watch for cars, and that he was not negligent as matter of law.

3.NEGLIGENCE—IMPUTED NEGLIGENCE—DRIVER OF VEHICLE.

Where plaintiff, a fireman, was riding as a passenger on a fire truck which was being driven home from a fire, and plaintiff had no control over the driver of the truck, the latter's negligence was not imputable to him.

4.STREET RAILROADS — COLLISION OF VEHICLES —ISSUES AND PROOF.

Where a petition in an action for injuries to a fireman in a collision between a street car and a fire truck charged that the motorman was negligent in running the car at a speed in excess of the rate fixed by a city ordinance so as to be dangerous to persons lawfully using the street, a finding of negligence because the speed of the car exceeded the ordinance limit, and in consequence of such high speed the car collided with the truck, was within the scope of the petition.

5. DAMAGES—EXCESSIVENESS—INJURIES.

Plaintiff, a fireman, was injured in a collision between his fire truck and a street car.He was under treatment four or five months, and was more or less disabled.His right leg was broken, his left foot crushed so as to interfere with his movements, and he received a head wound and bruises on his thigh.He also expended $215 for attendance.Held, that a verdict allowing plaintiff $4,000 was not excessive.

Appeal from St. Louis Circuit Court; Jno.A. Blevins, Judge.

Action by Harry F. Burleigh against the St. Louis Transit Company.From a judgment for plaintiff, defendant appeals.Affirmed.

Geo. Safford, for appellant.Boyle, Priest & Lehman and Morton Jourdan, for respondent.

GOODE, J.

On December 29, 1903, plaintiff was injured in a collision with one of defendant's trolley cars, and afterwards instituted this action for damages.The accident occurred after nightfall.Several acts of negligence on the part of the motorman of the car are averred as causes of the accident, but only three were submitted to the jury as grounds for a verdict for plaintiff.These three were, first, that the car had been running for more than 100 feet before reaching the point of collision at a higher speed than 10 miles an hour, and because of such speed the motorman was unable, by using all the appliances at hand, to check the car is time to avert a collision; second, that the motorman, after he might have discovered, by ordinary care, the danger of a collision, omitted to exercise said degree of care in using the appliances at hand to check the speed of the car in time to avoid a collision; third, that the motorman after he had discovered the danger of a collision failed to exercise ordinary care in using the appliances at hand to avert the collision.The occurrence was at the intersection of Geyer and Ohio avenues in the city of St. Louis.Plaintiff was at the time a member of the fire department of said city, and was riding on the running board of a ladder truck, returning from a fire.Five other firemen were on the truck, including Cornelius Zellers, who was the captain in command of the squad.Zellers and William Williamson were sitting side by side on the seat of the truck, and Williamson was driving.The truck was proceeding southward on Ohio avenue, and the horses had just crossed the south track, when the car, approaching from the east and on the north track, struck the truck.Plaintiff received serious injuries, including a fracture of his right leg and the bones of his left foot.Some witnesses estimated the speed of the car at 25 miles an hour; others lower.There is evidence tending to show the horses drawing the truck were visible to the motorman for a distance of 250 feet before the car reached Ohio avenue.A passenger testified to seeing the horses that distance ahead.Plaintiff was standing on the west running board, facing eastward, and was just able to see over the truck and down Geyer avenue.He said when he first looked over the truck and saw the car it was 50 feet away, coming at high speed and almost immediately collided with the truck.Williamson, the driver, testified that, when he saw the car, he was about over the north track and going over the south one; that he had no way of getting out, but had to go on across; that he first noticed the car when it was 50 feet away; that the truck was hit about the fender of the hind wheel; that he did not look east before he drove on the track because he did not hear anything coming; that the first time he looked was after the team had crossed the north track and was going over the other one.Capt. Zellers gave testimony about like Williamson's.He said he was in charge of the entire crew of the truck, including the driver; that he saw the car when it was about 175 to 190 feet away, and, of course, started across; that the car struck the truck before it was over the crossing; that from the outer rails of the car track to each of the curbs was about 11 feet and the distance between the two tracks and the two rails of each was about 5 feet; that there was nothing to obstruct the view of the car, and, if the driver had stopped when it was first seen, it would have passed without doing harm.Testimony was given regarding the distance in which the car, loaded as it was, and under all the circumstances, could have been stopped when going at the different rates of speed estimated by witnesses.This testimony tended to show it could have been stopped, if under either of the velocities, in time to avert a collision.According to the testimony of a physician who attended plaintiff, the outer bone of the right leg was broken, there were bruises about the hip, a cut on the head, and the heel bone of the left foot—the bone which supports the body—was broken.Plaintiff was very nervous all spring.He was treated four or five months.Said physician examined him during the week preceding the trial, and found his left foot swollen and partly stiffened, so as to interfere with locomotion.This doctor said he did not think plaintiff would ever walk as freely as before the injury, and that he would probably need the care of a physician in the future; that the union of the broken bones...