Fleddermann v. St. Louis Transit Company
| Decision Date | 17 November 1908 |
| Citation | 113 S.W. 1143,134 Mo.App. 199 |
| Parties | FLEDDERMANN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the St. Louis City Circuit Court.--Hon. Chas. Claflin Allen, Judge.
Judgment affirmed.
Boyle & Priest and T. M. Pierce for appellant.
(1) The court erred in refusing to give, at the close of the case, an instruction in the nature of a demurrer to the evidence at the request of the defendant. (a) Because the evidence showed that the plaintiff was guilty of contributory negligence. Brocksmidt v. Railroad, 205 Mo. 444; Holland v Railroad, 109 S.W. 22; McGauley v. Transit Co., 179 Mo. 583; Theobald v. Transit Co., 190 Mo. 435. (b) Because the proof showed the accident happened otherwise than pleaded and at a different place. Spiro v Railroad, 102 Mo.App. 250; McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mo 620; Stafford v. Railway, 85 N.W. 1036; Sanguinette v. Railway, 196 Mo. 466; Helm v. Railway, 185 Mo. 222. (2) The court erred in permitting the plaintiff to show that his right leg had been shortened as a result of his injuries when the shortening had not been pleaded. Moore v. Transit Co., ___ Mo. ___; 5 Enc. of Pleading and Practice, 748-750; O'Leary v. Rowan, 31 Mo. 117; Brown v. Railroad, 99 Mo. 310; Dunn v. Railroad, 105 Mo. 455; Coontz v. Railroad, 115 Mo. 669; Slaughter v. Railroad, 116 Mo. 269; Nicholson v. Rogers, 129 Mo. 40; 3 Sedgwick on Damages, sec. 1261; 1 Sutherland on Damages, sec. 418; Chitty on Pleading, 16 Am. Ed. 410, 411; 2 Greenleaf on Evidence (15 Ed.), secs. 88, 89. (3) The court erred in permitting the witnesses Hirschfield and Busche to testify for the plaintiff as to the speed the car was traveling at the time of the accident. Stotler v. Railroad, 200 Mo. 128; Huntley v. Railroad, 38 Mich. 540; Mathieson v. Railway, 97 N.W. 243.
Scullin & Chopin for respondent.
(1) The court did not err in sending the case to the jury; the evidence established the negligence of defendant, and appellant's instructions seven, eight, nine and ten amply protected it on the question of contributory negligence. There was no variance in the proof and pleading with regard to the place of the accident. Latson v. Transit Co., 192 Mo. 449; Mertens v. Transit Co., 122 Mo.App. 304; Storage & M. Co. v. Transit Co., 120 Mo.App. 410; Grocer Co. v. Transit Co., 89 Mo.App. 391. (2) There was no error in admitting testimony as to the shortening of plaintiff's limb. The testimony was competent under the allegations, and would have been competent and proper in any event. Coontz v. Railway, 115 Mo. 669; Brown v. Railway, 99 Mo. 310; Trust Co. v. Mursmann, 90 Mo.App. 555; Dooley v. Railway, 36 Mo.App. 381; Burkholder v. Pudrow, 19 Mo.App. 60. (3) There was no error in permitting testimony to enter, from plaintiff's witnesses, with regard to the speed of the car. Stotler v. Railway, 200 Mo. 123; Sludar v. Transit Co., 189 Mo. 107; Walsh v. Railway, 102 Mo. 582; Aston v. Transit Co., 105 Mo.App. 226; Haworth v. Railway, 94 Mo.App. 224; Covell v. Railway, 82 Mo.App. 180; Salter v. Railway, 59 N.Y. 634; Lawson on Expert and Opinion Evidence (2 Ed.), p. 505.
On the morning of October 28, 1904, at about five o'clock, plaintiff, while driving a wagon and team in the city of St. Louis, was run into by a trolley car of the defendant and suffered permanent injury: a broken thigh bone. Verdict went for him, and defendant appealed, not contending the damages awarded were incommensurate with the injury, but that a verdict should have been directed for defendant because plaintiff was proved to have contributed to the accident by his own negligence, and because the proof showed the accident occurred at another place than the one stated in the petition; assigning, also, error in an instruction for plaintiff, which permitted a recovery if the jury believed the speed of the car was higher than was prudent under the circumstances, and believed, further, the excessive speed "contributed to and was the direct cause of the collision." Other complaints are that plaintiff was permitted to prove his leg had been shortened by the fracture, when this fact was not alleged for special damages, and that the court permitted two witnesses who did not qualify as experts to testify regarding the speed of the car. The accident happened near the north end of Twelfth street bridge, a structure twenty-seven feet wide and twelve hundred feet long, which rises above and extends over various steam railroad tracks. The transit company operates cars over this bridge on two tracks, of which the west is used by south-bound cars and the east by north-bound. The bridge is built, in the main, of timbers, but with iron trusses. The surface of the bridge is level most of its length, but descends, in a gentle slope from a point two hundred and fifty feet south of its northern terminus, to the street. Plaintiff was employed by the Obert Brewing Company as driver of a wagon. About daybreak he drove on the bridge at its southern end near Gratiot street, and thence followed the east track northward until he was close to the north end, when the car overtook him, struck the rear wheel of the wagon and knocked him from the wagon seat to the street, where he lay unconscious. The roadbed or driveway of the bridge, is about nineteen feet, three inches wide. On either side is a space two feet four inches wide from the sidewalk to the first rail of the car track, the intermediate space being taken up by the two tracks, each four feet ten inches wide with a space between them of the same width. A person could hardly drive across the bridge without proceeding on one track or the other, plaintiff said, and he was traveling along the east track, the one on which cars ran northward, the way he was going. By driving on this track he avoided meeting south-bound cars, as he would have done had he used the west track.
1. Plaintiff swore that when he drove on the bridge at Gratiot street he looked and listened for cars, and neither heard nor saw any; again looked some two hundred feet from where the collision occurred, and was listening all the time, but never heard the rumble of a car, or the sound of a warning gong. Some witnesses who were on the car, testified they heard no warning given, though one of them swore he stepped to the front door of the car just prior to the collision and saw plaintiff's wagon plainly visible ahead. Witnesses testified the speed of the car at the time of the collision was thirty miles an hour, and that the motorman, besides giving no warning, did not slacken speed after he must have seen a collision was impending. We discern no merit in the contention that the court should have directed a verdict for defendant, either on the theory of lack of negligence on the part of defendant, or concurrence of negligence on the part of plaintiff. The speed at which the car was running was excessive, if some testimony is to be believed, as there was neglect in not warning plaintiff of the car's approach, if other is to be believed. These are the acts of negligence on which a recovery was submitted. According to plaintiff's statements he used care, both in looking and listening, but nevertheless failed to detect the car's approach. His not hearing its rumble is accounted for by the noise of trains and engines switching on the tracks under the bridge, and drowning the sound of the trolley car as it came up behind. It is contended for defendant, plaintiff was in a mood of abstraction when he should have been attentive, as there was noise below which rendered it difficult to hear an approaching trolley car. The testimony of plaintiff shows he was on the watch, had looked twice to the rear for a car and had listened constantly. He might have heard the bell if it had been rung to warn him, even though he did not hear the rumble of the car; a sound which would be confused more readily with the rumble of trains below than would the clang of the gong. In our opinion these matters were all for the jury on conflicting testimony. The case of McGauley v. Transit Co., 179 Mo. 583, 79 S.W. 461, and Theobald v. Transit Co., 191 Mo. 395, 90 S.W. 354, cited for defendant, are not in point. We are familiar with those cases, but do not care to digest their facts in this opinion, and will say simply the plaintiffs were nonsuited for special circumstances which do not appear in the present case.
2. The instruction of which complaint is made on the authority of Hof v. Transit Co., 213 Mo. 445, 111 S.W. 1166 falls outside the principle of said decision. The instruction condemned in the Hof case allowed a verdict for the plaintiff if the defendant's negligence directly "contributed to cause the collision;" whereas the present instruction required the jury to find the negligence of defendant as specified, not only contributed to the collision, but was the direct cause of it. This instruction, and several given for defendant, told the jury plaintiff could not recover unless they found he was in the exercise of due care at the time of the collision. The thirteenth charge for defendant said if plaintiff's negligence in any degree directly contributed to cause his injury, he could not recover and the verdict must be for defendant. A finding for plaintiff was excluded if his own negligence contributed to cause his injury; and he was entitled to recover if defendant's negligence directly contributed to and caused it, though some adventitious fact, not constituting negligence of plaintiff, may have had something to do with the accident. In other words, if defendant's alleged tort directly contributed to the occurrence, and no negligence of plaintiff was influential in bringing it about, his cause was good, though there was...
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