Campbell v. St. Louis Transit Co.

• Citation: 99 S.W. 58,121 Mo. App. 406
• Parties: CAMPBELL v. ST. LOUIS TRANSIT CO.
• Decision Date: 08 January 1907
• Court: Court of Appeal of Missouri (US)

99 S.W. 58

121 Mo. App. 406

CAMPBELL v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

January 8, 1907.

1. STREET RAILROADS — OPERATION — VIOLATION OF SPEED ORDINANCE—CAUSE OF INJURY.

The violation of a speed ordinance by a street railroad company is negligence per se, but plaintiff, injured in a collision with a car, cannot recover because of such violation unless it caused the injury and he used ordinary care to avoid the injury.

2. TRIAL — INSTRUCTIONS — APPLICATION OF LAW TO FACTS.

In an action against a street railroad company to recover for injuries received in a collision, the giving of an instruction correctly defining the duty of the motorman without applying the law to the facts of the case is error, as it is the duty of the court to tell the jury what they must find to arrive at a correct verdict.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Given Campbell against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Guy A. Thompson, for respondent.

BLAND, P. J.

The appeal is from a judgment recovered by plaintiff in an action for personal injuries and damages to his automobile, caused by a collision with one of defendant's street cars, traveling west on Delmar avenue, on June 19, 1903, in the city of St. Louis. The evidence shows that Delmar avenue runs east and west, and at the time of the collision, defendant maintained and operated a double street car line in the center of said street; that King's Highway runs north and south and crosses Delmar avenue at right angles; that on the day of the accident, plaintiff was driving his automobile north on the east side of King's Highway (the west side being torn up for repairs) and when he arrived near the crossing of Delmar avenue, he turned to the west side of King's Highway, the better to enable him to see east on Delmar and to ascertain if a car was coming from that direction. Plaintiff testified that, from the west side of King's Highway, he could see 300 feet east on Delmar avenue and saw no car, and then turned back to the east side of the street and approached the crossing of Delmar at a speed of about six miles an hour, looking and listening all the while for a car; that when within about 40 feet of the tracks, he saw a car about 240 feet east, coming at a speed of from 25 to 30 miles per hour; that from the speed the car was traveling, he thought he could not clear the track in time to avoid a collision and immediately disconnected the power of his automobile, and did everything he could to stop it, but was unable to do so before it ran upon the track, where it was struck by the car, causing damages to the automobile and divers cuts, sprains, and injuries to himself. John Doyle, an experienced motorman, testified that a car running at a speed of 15 or 20 miles per hour could be stopped in from 100 to 125 feet, and one running at a speed of 25 or 30 miles per hour in from 125 to 150 feet. Plaintiff offered in evidence an ordinance of the city of St. Louis, limiting the speed of cars, at the point in question, to 15 miles per hour; also what is commonly known as the vigilant watch ordinance." The evidence tends to show that the automobile weighed about one ton, and plaintiff testified it was in perfect condition. William R. Morgan, a witness for defendant and an automobilist, testified that plaintiff's automobile, running at a speed of 15 miles per hour, could have been stopped in about thirty feet, and at a speed of 6 miles per hour in about 20 feet. Defendant's evidence tends to show that the automobile first came into view from behind a coal wagon when within 10 feet of the track, and when the car was about the same distance from the crossing, and that the automobile was running as fast as the car; that when it first came into view the motorman did everything in his...