Hartman v. St. Louis Transit Co.
| Decision Date | 02 May 1905 |
| Citation | 87 S.W. 86,112 Mo.App. 439 |
| Parties | HARTMAN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
This action was instituted before a justice of the peace to recover for damage done to plaintiff's horse and wagon by one of the defendant's street cars. The accident transpired June 20, 1900, about 12:30 p. m. and on Laclede avenue in the city of St. Louis, west of its intersection with Sarah street. The testimony of the driver of the wagon is that while traveling on the north side of Laclede avenue between Vandeventer avenue and Sarah street, he wished to cross to the south side of Laclede avenue; but before doing so looked to the rear and saw a car approaching about two hundred feet away. thereupon he drove diagonally across the tracks, making a cut of ten or fifteen feet in going across toward the southwest. When he was about half way over the north track the car struck the vehicle, carrying it eighty or ninety feet, breaking it and injuring the horse so badly he had to be shot. The driver said he had no idea at what speed the car was approaching and miscalculated the speed, and in consequence the collision resulted. He said that after he looked back before he started across the tracks he did not look again before the collision. The motorman testified that when the car was not more than twenty or twenty-five feet away the driver suddenly pulled the horse and wagon in front of it; that he (the motorman) used all the appliances at hand, but could not stop the car before it collided with the wagon. This testimony was corroborated to some extent, as was that of the driver. A passenger on the car testified to seeing the wagon about ten inches north of the track the car was on and that the driver at first turned out of the way enough for the car to clear the wagon; then the motorman increased the speed of the car, and just as it was about to pass the wagon, the driver turned south on the track in front of the car. At this instant the distance between the two vehicles was about ten feet. There was evidence to show the driver did not look and listen for a car before he drove in front of the one that did the damage.
The complaint contains two paragraphs. The first one charges the motorman and conductor of the car with "carelessly and negligently and willfully and wantonly, and while causing said car to run at a high and reckless speed, and without ringing the gong on said car or otherwise (sic) causing said car to run down, strike, knock down and drag the horse attached" to plaintiff's wagon for a distance of from eighty-five to one hundred feet, whereby the horse was so injured that he had to be shot; that it also caused the wagon, its contents and the harness to be damaged. The second paragraph stated a cause of action based exclusively on alleged negligence of the defendant in employing the motorman who was operating the car, and averring that the motorman was inexperienced, incompetent and unskillful, and incapable of properly acting as motorman; that the transit company knew or by the exercise of ordinary care, might have known the motorman was unfit, and that by reason of defendant's negligence in employing such an unfit person to operate its car, the car was caused, by the motorman's carelessness to run against plaintiff's horse and wagon and damage them. The cause of action stated in the second paragraph of the statement was excluded from the jury's consideration by an instruction at the trial. It will be observed that the complaint is crude. As originally filed it was faulty in mingling in the first paragraph or count, charges of both a negligent and a willful tort. Before the introduction of any evidence the circuit court permitted plaintiff to amend the statement by striking out the words "willfully and wantonly" in the first paragraph, so that the cause of action stated became one of negligence merely, to-wit: that the defendant carelessly and negligently and while causing its car to run at a high and reckless rate of speed and without ringing the gong, collided with plaintiff's wagon. It will be seen that two careless acts are averred.
The court gave this instruction at plaintiff's request:
"The court instructs the jury, if you believe and find from the evidence that on the 26th day of June, 1900, the defendant St. Louis Transit Company, operated a street car system, propelled by electricity upon, over and along Laclede avenue in the city of St. Louis, Missouri, between Vandeventer and Sarah street in said city, and operated a certain street car known as No. 1106, operated by electricity, and that on said day caused said car to run westwardly along Laclede avenue, between Vandeventer avenue and Sarah street, and that said Laclede avenue was an open public street in said city, and that plaintiff's agent or driver, duly acting for plaintiff, drove a horse and wagon, the property of plaintiff, along the north side of Laclede avenue, between Vandeventer avenue and Sarah street and that while in the act of driving said horse and wagon from the north side of Laclede avenue southwardly across the north track operated by said defendant, St. Louis Transit Company, said car No. 1106, operated by said St. Louis Transit Company, ran against said horse and wagon and knocked said horse down and injured him and did other damage; that the collision between the horse, wagon and car, was directly caused by defendant's motorman and agent in charge of said car, carelessly and negligently, and while running said car at a high and reckless rate of speed, causing said car to run down, strike, knock down and drag the horse attached to said wagon, then the jury will find for the plaintiff; unless you further believe and find from the evidence, that plaintiff's agent or driver, by negligence on his part, directly contributed to said collision and injuries resulting therefrom; and in determining the question as to whether or not the defendant's motorman or agent operating said car, or the plaintiff's agent or driver were, or were not, negligent, you are instructed to take into consideration all the facts and circumstances as proved by the evidence, and shown to have existed at the time and place the collision occurred."
The defendant requested the following instruction without the part in italics, but the court amended it by adding that part and then gave it:
"The court instructs the jury that if they believe from the evidence in this case that defendant's motorman operating its west-bound car saw plaintiff's driver drive toward its track, said motorman had the right to presume that such driver would not attempt to cross immediately in front of said car, and if the jury further believe from the evidence that said driver attempted to drive across said west-bound track when said car was within a few feet of the point where he was attempting to cross said track, plaintiff cannot recover and your verdict must be for the defendant, unless the jury believe from the evidence that the defendant's motorman, after he discovered the danger to which plaintiff's driver had exposed himself, wagon and horse, by attempting to so cross defendant's track could, by the exercise of ordinary care, have prevented the collision and injury."
The court refused this instruction requested by the defendant:
Judgment reversed and cause remanded.
Sears Lehmann with Geo. W. Easley for appellant.
(1) The court erred in amending instruction numbered 20, offered by defendant as follows, the italicized words at the conclusion...
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