Case v. Jefferson City Bridge & Transit Co.

• Decision Date: 06 November 1916
• Docket Number: No. 12183.,12183.
• Parties: CASE v. JEFFERSON CITY BRIDGE & TRANSIT CO.
• Court: Missouri Court of Appeals

189 S.W. 390

CASE v. JEFFERSON CITY BRIDGE & TRANSIT CO.

No. 12183.

Kansas City Court of Appeals. Missouri.

November 6, 1916.

Appeal from Circuit Court, Cole County; J. G. Slate, Judge.

"Not to be officially published."

Action by Rex C. Case against the Jefferson City Bridge & Transit Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Irwin & Haley, of Jefferson City, for appellant. Pope & Lohman, of Jefferson City, for respondent.

JOHNSON, J.

This is an action for damages for personal injuries plaintiff alleges were caused by the negligence of defendant in the operation of an electric street car on High street in Jefferson City. The car collided with a one-horse delivery wagon plaintiff was driving eastward on High street, and the petition alleges that the collision was caused by negligence in running the car "at a reckless, careless, dangerous, and unlawful rate of speed." This is the only specific averment of negligence. The answer, in addition to a general denial, specifies acts of negligence on the part of plaintiff which, it is alleged, were the sole cause of the injury, but contains no technical plea of contributory negligence. Ramp v. Met. St. Ry. Co., 133 Mo. App. 700, 114 S. W. 59. A trial to a jury resulted in a verdict and judgment for plaintiff for $100, and defendant appealed.

The injury occurred after dark in the evening of January 12, 1915, while plaintiff was attempting to drive across the car track at or near the intersection of Marshall street. He had been driving east on the south side of High street along a course about 4 feet south of the track and, when at or near the street intersection, turned his horse to a northerly course for the purpose of driving north on Marshall street. According to the testimony of plaintiff, the collision occurred when the horse had crossed the track, and the car, which was running at unusually high speed, struck the rear part of the wagon and pushed the wagon and horse 100 feet or more along the track until the car stopped. Plaintiff lost consciousness at the instant of the collision, and the inference that the horse and wagon were pushed ahead of the car proceeds from his testimony that he had reached Marshall street when he turned northward, and therefore was in a place 100 feet or more east of the place where the horse and wagon were found after the collision, and upon the testimony of witnesses to the effect that the noises of the collision included prolonged scraping sounds such as would have accompanied the sidewise pushing of a wagon along a pavement. The wagon was not overturned, but was left standing on the south side of the track, a front wheel and the shafts were broken, the horse was found lying on the north side of the track detached from the wagon, and with a front and hind leg broken.

The motorman, a witness for defendant denied that the horse and wagon were pushed or dragged by the car. He states that plaintiff turned in front of the car after it had crossed Marshall street, and that:

"Just as the horse and the front of the wagon got across, I struck it, and it knocked the horse loose from the wagon. I did not drag either the horse or wagon, just struck them, and the horse went on one side and the wagon on the other. I struck the horse just a little to the front of the wagon, just caught the right fore wheel and broke it and the right shaft. I was right at him at the time he started and put his horse on the track, not over 15 or 20 feet. The car was under full speed. I had the full power on, but it had not had time to pick up full speed. I judge I struck him about 100 feet on this side (west) of Marshall street. I had no idea that he would turn across the track before he did."

The street lights were burning, and the car carried a headlight. Plaintiff observed the car when it was at the intersection of Lafayette street, a block east of Marshall street, and noticed that the car was approaching at a rapid speed, but did not notice that its speed was unusually high. The car was more than 500 feet distant, and plaintiff states:

That he was then starting to turn the horse to make the crossing. When he looked again the horse had just crossed the track, and the car was still 200 feet away. "Q. When your horse got on the track it (the car) was 200 feet away? A. No, when the horse got across the track. Q. When the horse was entirely across the track the car was 200 feet away? A. Yes, sir. Q. And before you got off it struck the wagon before you could drive off the track? Is that what you tell the jury? A. Well, I couldn't say it was exactly 200 feet. I couldn't measure looking into a headlight after night. I might be mistaken just exactly how far away it was."

Plaintiff offered no evidence which clearly or definitely estimated the rate of speed at which the car aproached. Witnesses described the speed as "very fast" and "faster than usual." Plaintiff himself stated that usually cars ran along that track at about...