Doyle v. St. Louis Transit Co.
| Decision Date | 01 December 1903 |
| Citation | 77 S.W. 471,103 Mo.App. 19 |
| Parties | DOYLE, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. R. Kinealy Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Boyle Priest & Lehmann, Geo. W. Easley and Crawley, Jamison & Collett for appellant.
(1) Defendant's objection to the introduction of any evidence under plaintiff's petition should have been sustained for the reason that said petition does not state facts sufficient to constitute a cause of action. While it is of course true that joint tortfeasors are jointly and severally liable, it is also true, equally, of course, that such liability only attaches where the wrong is, in fact, joint. In order to constitute a joint wrong so as to make each wrongdoer responsible for the misconduct of both, there must be some concert of action, or some community of duty; so that it may be justly said the misconduct or negligence of one not only contributed to the result itself, but also caused or contributed to the misconduct or negligence of the other. Stanley v. Railroad, 114 Mo. 606; City of Independence v. Ott, 135 Mo. 301; De Donato v. Morrison, 160 Mo. 581. (2) In order to obtain a continuance on account of the absence of witness Watkins, appellant filed a formal application setting forth what it expected to prove by said absent witness. To prevent a continuance being granted, plaintiff admitted that said absent witness, if present, would testify, as set forth in said affidavit. Because of this concession on the part of plaintiff, defendant Transit Company was driven into trial, and compelled to forego whatever advantage might have accrued to it from the personal presence of said absent witness. Having thus forced the Transit Company to trial, it was not only erroneous but manifestly unjust for the court to nullify the effect of the testimony of said absent witness, by giving the following instruction, at the request of Harrigan & Sheahan: "The court instructs the jury that in determining the question as to whether or not the defendants Harrigan & Sheahan, in this case were guilty of any negligence that directly and proximately contributed to cause the collision in question, the jury shall not consider the testimony of absent witness, J. Watkins, which was read to the jury by the attorney of the St. Louis Transit Company." It constitutes reversible error. R. S. 1899, sec. 637; State v. Ellis, 74 Mo. 210; Elsner v. Supreme Lodge, 98 Mo. 643; Woolwine v. Bick, 39 Mo.App. 50.
A. R. Taylor for respondent.
The respondent pursued his statutory right when the affidavit for a continuance was presented. He had the right to admit that if the absent witness was present in court he would swear as the affidavit recited. This respondent did so. R. S. 1899, sec. 687; O'Rourke v. Railway, 142 Mo. 351; Taylor v. Railroad, 137 Mo. 368.
Plaintiff received a head-wound by the collision of one of the defendant's electric cars with a carriage in which he was riding. This action for damages was instituted against the Transit Company and Harrigan & Sheahan, who were undertakers and liverymen, as joint defendants.
Plaintiff hired a carriage from said firm to attend a funeral in the outskirts of the city of St. Louis. His sister, mother-in-law and a child were in the carriage with him, he being seated on the front seat with his back to the horses. On the return from the cemetery, as they were driving along Florissant avenue, and nearly opposite a road-house, the collision occurred. The carriage had been driven along the south or inbound track, and was in no danger on that track from a front-end collision, as all cars thereon moved in the direction the carriage was going. According to the testimony for the plaintiff, it was forced to leave that part of the avenue west of the road-house on account of the street being closed for certain improvements to be made. The carriage then drove along on the north side of the avenue and when near the road-house entered the north street car track to get around some carriages which were standing at the road-house. While proceeding on the north track a short distance and just as the driver was turning out of it, a street car struck the front of the carriage near the right wheel, smashed it and broke the plaintiff's skull, he and his physicians swore; though there is testimony for the defense that he received merely a scalp wound.
The negligence of which the Transit Company is accused is that the car crew ran the car in question at a reckless and excessive speed, gave no warning of its approach, failed to keep watch for vehicles in the street, used no effort to stop the car and caused it to collide with the carriage. Violations of the vigilant-watch and the speed ordinances of the city of St. Louis were pleaded.
As to the defendants Harrigan & Sheahan, the charge of negligence is that their servant, the driver of the carriage, caused and suffered it to be collided with by the car, his negligence concurring directly with the negligence of the Transit...
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