Daso v. Jefferson City Bridge & Terminal Co.
| Decision Date | 06 November 1916 |
| Docket Number | No. 12182.,12182. |
| Citation | 189 S.W. 400 |
| Parties | DASO v. JEFFERSON CITY BRIDGE & TERMINAL CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.
"Not to be officially published."
Action by Don A. Daso against the Jefferson City Bridge & Terminal Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Irwin & Haley, of Jefferson City, for appellant. Pope & Lohman, of Jefferson City, for respondent.
Plaintiff's action was instituted to recover damages for personal injury received in a collision with one of defendant's street cars on a street in Jefferson City, and also for partial destruction of his automobile in the same collision. He recovered judgment for $25 for injury to himself and $75 to his automobile.
It seems that plaintiff resided on a street in a block between cross-streets in Jefferson City, and that he had a private driveway from the street into his premises which he used in getting his automobile in and out; that defendant's street railway track is on this street, and in getting out of his premises it was necessary for him to back his machine across the sidewalk and defendant's track. At the time of the collision plaintiff had backed out and stopped on the sidewalk. He got out and "cranked" the machine to start the engine. He got in and undertook to back across the track when he was struck by defendant's street car.
The case was based on two theories, one that defendant was guilty of negligence and plaintiff was not, and on the humanitarian rule. There was evidence tending to show that defendant's motorman was, and also that he was not, guilty of negligence. So there was evidence tending to show that plaintiff was, and also was not, guilty of contributory negligence. Furthermore, there was evidence tending to show that the motorman discovered plaintiff's peril, or, in the exercise of ordinary care, might have discovered it in time to have avoided the collision.
Objection is made to the instructions given at plaintiff's instance. The first one is a mere abstraction mingled with an argument. Its tendency was harmful, and it should be omitted. The second should have the words, "the jury believe from the evidence that," between the words "if" and "he," near the middle of the instruction.
The fourth instruction directs a verdict for plaintiff if it was believed the motorman was negligent, and omits any condition or qualification as to plaintiff's contributory negligence. If it be said, in excuse for this, that the...
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