Burleigh v. St. Louis Transit Company
| Decision Date | 14 May 1907 |
| Citation | 102 S.W. 621,124 Mo.App. 724 |
| Parties | BURLEIGH, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.
AFFIRMED.
Judgment affirmed.
Morton Jourdan and George W. Easley for appellant; Boyle, Priest & Lehmann of counsel.
(1) The demurrers to the evidence offered at the close of plaintiff's case and at the close of the entire case should have been sustained. It is undisputed that had the plaintiff looked, or had any one on the fire truck looked the approaching car could have been seen in time to have avoided going on the track, or by hurrying across before the car struck the fire truck. Holwerson v. Railroad, 157 Mo. 216; Watson v. Railroad, 133 Mo. 250; Boyd v. Railroad, 105 Mo. 371; Sinclair v Railroad, 133 Mo. 241; Huggert v. Railroad, 134 Mo. 673; Vogg v. Railroad, 138 Mo. 172; Culbertson v. Railroad, 104 Mo. 35; Railroad v. Mosley, 57 F. 922; Kirtley v. Railroad, 65 F. 391; Murphy v. Railroad, 153 Mo. 262; Butts v. Railroad, 98 Mo. 272; Loring v. Railroad, 1128 Mo. 349; Kries v. Railroad, 148 Mo. 321; Kotney v. Railroad, 151 Mo. 35; Kelsey v. Railroad, 129 Mo. 262; Lane v. Railroad, 132 Mo. 4; Scofield v. Railroad, 1114 U.S. 615; Maxey v. Railroad, 113 Mo. 1; Payne v. Railroad, 136 Mo. 562. (2) The court erred in giving the fourth instruction on behalf of plaintiff and also in refusing the sixth and seventh instructions asked by defendant. Also in refusing instructions fifteen and sixteen asked by defendant. The plaintiff was so identified and stood in such privity with the other men upon the truck as to make their negligence a defense to plaintiff's action. We are not unmindful of the opinion of this court in Baxter v. Transit Co., 103 Mo.App. 597. We respectfully insist that that case was wrongly ruled on this question. (3) The court in passing on the Baxter case hastily concluded that the case of Keitel v. Railroad, 28 Mo.App. 657, "is directly in point and settles this question." The latter case is decided solely on the ground that Thorogood v. Bryan, 8 C. B. 115, has been thoroughly overthrown both in England and America. Dickson v. Railroad, 104 Mo. 491. (4) We insist that the question requires further examination, and respectfully urge the court to examine the following authorities: Bicknell v. Railroad, 120 N.Y. 290, 24 N.E. 450; Miller v. Railroad, 128 Ind. 47, 27 N.E. 359; Donnelly v. Railroad, 109 N.Y. 16, 15 N.E. 733; Griffith v. Railroad, 44 F. 574; 1 Shearman and Redf. on Neg. (3 Ed.), sec. 66a, note 1; Brannon v. Railroad, 115 Ind. 115, 17 N.E. 202.
George Safford for respondent.
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 one hundred feet before reaching the point of collision at a higher speed than ten miles an hour and because of such speed the motorman was unable, by using all the appliances at hand, to check the car in 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 twenty-five 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 two hundred and fifty feet before the car reached Ohio avenue. A passenger testified to seeing the horses that distance ahead. Plaintiff was standing on the west runningboard, 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 fifty 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 fifty 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. Captain 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 eleven feet and the distance between the two tracks and the two rails of each was about five 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 for 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 was a good one, but plaintiff could not put much pressure on the heel yet. Another physician testified that he had examined the plaintiff just before the trial and found the right limb much swollen and filled with inflammatory fluid, with evidence of a fracture about the middle third of the leg bone; that the "carpal bone" of the left leg had been injured and broken, as the witness had ascertained from the history of the case; that plaintiff's walk would necessarily always be slow and he was reasonably certain to suffer more or less pain. City ordinances were introduced to prove any speed in excess of ten miles an hour was illegal. Such is the statement of the case according to the evidence for plaintiff, given for the purpose of passing on the contention that a verdict for defendant should have been ordered. Medical testimony for defendant tended to show plaintiff's injuries were not so grave as the foregoing statement would indicate and also to disprove negligent conduct on the part of the motorman. The jury returned a verdict for plaintiff in the sum of $ 4,000.
There was evidence tending to prove the three acts of negligence on the part of the motorman, which the instructions permitted the jury to find--evidence that the speed of the car was much too high and prevented a timely stop after the danger to the truck became apparent, and evidence that with any proper use of the appliances at the command of the motorman, he might have stopped the car after the peril of the truck was discovered, or, by ordinary care, could have been discovered. In the face of such proof it would have been improper to direct a verdict for defendant on the ground that negligence in the operation of the car was not established prima facie. Negligence of plaintiff was pleaded in defense of the action but certainly if he is to be held responsible only for his own conduct, the proof that it contributed to cause the accident was far from conclusive. In the...
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