Freymark v. St. Louis Transit Co.

• Decision Date: 21 February 1905
• Court: Missouri Court of Appeals
• Parties: FREYMARK v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

85 S.W. 606

111 Mo. App. 208

FREYMARK v. ST. LOUIS TRANSIT CO.^*

St. Louis Court of Appeals. Missouri.

February 21, 1905.

STREET RAILROADS — PERSONAL INJURIES — COLLISION WITH VEHICLE — EVIDENCE — QUESTION FOR JURY — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

1. In an action against a street railroad company for injuries caused by plaintiff's wagon being struck by a car while plaintiff, who was driving parallel with the tracks, was attempting to cross, evidence held to justify submission of the issues of defendant's negligence and plaintiff's contributory negligence.

2. A requested instruction that, if the negligence of plaintiff contributed directly to his injury, the finding should be for defendant, though it was also negligent, was sufficiently embodied in instructions that it was plaintiff's duty before driving on defendant's track to look and listen for cars, and that, if by so doing he could have averted the injury, defendant was not liable, and that the burden was on plaintiff to show that the injuries were caused solely by defendant's negligence, so that, if the injuries were caused by plaintiff driving in front of defendant's car, so that the motorman could not, by the use of ordinary care, stop it in time to avoid collision, defendant was not liable.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Alfred Freymark against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. Kurt Van Reppert, for respondent.

BLAND, P. J.

Plaintiff herein recovered judgment for $500 in an action for personal injuries sustained by him and for damages to his wagon from a collision with one of defendant's cars. After prefatory allegations, the cause of action was thus set forth: "That the plaintiff on the 3d day of December, 1902, was the owner of the laundry wagon, horse, and harness mentioned herein; that on said day, at about 10:25 a. m., and while he was driving across defendant's track near a place known as 3739 Finney avenue, in the city of St. Louis, in a northeasterly direction, defendant's agent in charge of defendant's west-bound car so carelessly and negligently managed and controlled said car as to cause and suffer the same to collide with plaintiff's wagon, causing said wagon to be broken up, the harness to be torn, and plaintiff to be thrown off and from the seat of his wagon, and injured about the head, the right eye, demolishing two teeth, spraining his back, paralyzing his right leg, and caused to spit blood. Plaintiff says that by reason of the said injuries he suffered great pain, both in mind and body; that he was for a long time hindered and prevented from attending to his affairs and business, and had to hire help, and will have to continue to do so indefinitely; that he has expended and will expend large sums of money for medicine and medical attention, and that he has received permanent injuries, and, furthermore, the said wagon and harness were so broken up and torn that he was caused to, and did, expend large sums of money for the repairs of same; that Finney avenue, at said place, is an open public highway." In defense, defendant pleaded a general denial and contributory negligence, in the following form: "And for another and further answer and defense to plaintiff's petition, defendant says that the injuries received by plaintiff were the result of his own carelessness and negligence in driving upon defendant's track in front of an approaching car, and so close to the same as to render it impossible for the motorman in charge of said car, by the use of all the means and appliances at his command, to stop the same in time to avoid the collision complained of." A general denial in reply completed the issues.

Finney avenue extends eastwardly and westwardly, and is intersected respectively by Grand avenue, where the buildings begin to be numbered 3600; Spring avenue, 3700; and Krum avenue, 3800. Defendant maintains on Finney avenue a south track for east-bound cars, and a north track for west-bound cars. Plaintiff testified that on the morning of December 3, 1902, at about 10:30, he was driving a single-horse, covered laundry wagon eastwardly on south side of Finney avenue, between the south track and the pavement, midway between Spring and Krum avenues. Having a customer at No. 3739 Finney avenue, he purposed crossing to that number. When he started to turn his horse, which was moving slowly at a walk, the car which struck his wagon was at Grand avenue, a block and a half east. His effort to cross in safety failed; the car, at great speed and unchecked, striking the right hind wheel...