Hanheide v. St. Louis Transit Co.

• Decision Date: 02 February 1904
• Parties: HANHEIDE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

78 S.W. 820

104 Mo. App. 323

HANHEIDE v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

February 2, 1904.

STREET RAILROADS—INJURIES AT CROSSINGS—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—DEFINITION—PROXIMATE CAUSE—INSTRUCTIONS.

1. Where, in an action for injuries in a collision with a street car, the defense of contributory negligence is presented in the instructions taken as a whole, that one of the instructions ignored such issue was immaterial.

2. Plaintiff was injured in collision with a street car at a crossing. He testified that when his horses, which were hauling a heavy wagon, were about 5 feet from the track, he saw the car about 230 feet distant, when he whipped up his team to get across; that his horses' heads were about 24 feet from the wagon end, and the motorman approached in plain sight with unabated speed, and struck the rear of the wagon; that the car was going between 10 and 12 miles an hour, and other witnesses testified that it could have been stopped within 35 feet. Held that, plaintiff and the motorman being each bound to exercise due care to avoid the collision, it was for the jury to determine which party was at fault.

3. Where a street railway motorman discovers a vehicle negligently approaching a crossing, it is his duty to so regulate the speed of his car, if in his power, to avoid a collision and the mere negligence of the plaintiff in approaching and crossing the track would not justify the infliction of an injury if it could be avoided by the exercise of reasonable care and caution.

4. An instruction on contributory negligence, requiring that such negligence, in order to be a defense, should be the sole and direct cause of the accident, was erroneous; since, if the accident was caused by the joint and concurring negligence of both plaintiff and defendant, and the negligence of neither without the concurring negligence of the other would have caused the injury, plaintiff was not entitled to recover.

Appeal from Circuit Court, Franklin County; Wm. A. Davidson, Judge.

Action by William Hanheide against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Jno. W. Booth and Scullin & Chopin, for respondent.

REYBURN, J.

This, an action for damages for personal injuries sustained by plaintiff in collision between his wagon and an electric car of defendant on the 6th day of November, 1902, was begun in the circuit court of the city of St. Louis, and upon application of plaintiff for change of venue transferred to the circuit court of Franklin county. The petition contained averments that plaintiff was driving in a westerly direction on North Market street, and when he reached the point of its intersection with Fifteenth street, and while crossing defendant's tracks, his wagon was struck by a car traveling northward on Fifteenth street, and his consequent injuries were described. The assignments of negligence were negligent and careless management of defendant's car by its servants in failing to exercise ordinary care to keep watch for vehicles crossing said tracks, in failing to give any signal of the approach of the car, and to use ordinary care to stop the car after the danger to plaintiff became apparent, or by exercise of ordinary care would have become apparent, and by running at a high rate of speed. The defense coupled with a general denial the plea of contributory negligence in driving upon the track in front of a moving car at a time and place when and where, by looking and listening, he might have seen and heard the approaching car in time to have remained off and gotten off the track and avoided the accident, and that he failed to look or listen for the approach of such car, and to heed what he saw, if he did look or listen, and thereby caused his own injuries.

The evidence introduced consisted of the testimony offered on part of plaintiff, defendant tendering none. Plaintiff testified that at about half past 5 o'clock in the afternoon he was driving a team hauling a heavy wagon west on North Market street, and in crossing Fifteenth street was struck by a car north-bound; that before starting across Fifteenth street he had looked for cars, and saw this car about three-quarters of a block, or 225 to 230 feet, distant, at which time his horses were about 5 feet from the track; that he saw the motorman was approaching with unabated speed, and he whipped up his team to get across; that the tips of his horses' heads were about 24 feet from the wagon end, and the wagon was struck in the rear before it was wholly across. He further deposed that he rode on street cars, but not very often; had frequently seen them, and could form an opinion of the speed of a car going between two points, and, while it was difficult to determine, the rate of this car was between 10 and 12 miles per hour; that the motorman made no effort to check the speed until about 10 or 15 feet from the wagon; and there was no obstruction, and he saw the car plainly when he drove on the track. Other witnesses differed but slightly from plaintiff in their description of the occurrence,...