Hess v. United Rys. Co.

• Decision Date: 05 November 1907
• Parties: HESS v. UNITED RYS. CO.
• Court: Missouri Court of Appeals

105 S.W. 277

127 Mo. A. 304

HESS v. UNITED RYS. CO.

St. Louis Court of Appeals. Missouri.

November 5, 1907.

NEW TRIAL — INSTRUCTIONS — HARMLESS ERROR.

Where, in an action for injuries to plaintiff's team by a collision with a street car, there was no evidence that the motorman failed to stop the car on the first appearance of danger, which was the only negligence charged, but all the testimony showed that, as the car started to go by the team, the pathway was clear with nothing to suggest danger of collision, and that the accident was caused by a sudden movement of the horse while the car was passing, a verdict for defendant was right, notwithstanding any error in an instruction given for defendant, and it was therefore improper to grant plaintiff a new trial.

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

Action by Clemens Hess against the United Railways Company. From an order sustaining plaintiff's motion for a new trial, defendant appeals. Reversed and remanded.

Boyle & Priest, for appellant. John P. Leahy, for respondent.

GOODE, J.

Appeal from an order sustaining a motion for a new trial. The action is one for an injury to a horse, inflicted by a trolley car operated by appellant. The accident happened August 16, 1905, about 300 feet east of the intersection of Hamilton and Easton avenues, and on the latter thorough fare. Respondent is engaged in the grocery business at No. 5899 Easton avenue, which is on the north side of the street, a short distance from the scene of the occurrence. A horse and delivery wagon, in charge of one of respondent's employés by the name of Isaac Alexander, was driving toward respondent's establishment from the east; that is to say, the boy was driving westward on the south side of Easton avenue. That street was torn up in the vicinity on account of repair work the street railway company was doing. The paving in the street car tracks had been taken up, and also a foot south of the tracks. This left a driveway about 14 or 15 feet wide between the south curb and the edge of the street where the paving had been removed. Immediately in front of respondent's horse and wagon, and proceeding in the same direction, were another horse and wagon owned by the Nelson-Morris Company. The latter were stopped in their westward course by a buggy, and, when they stopped, Alexander, who was in charge of respondent's wagon, attempted to drive around the Nelson-Morris wagon, and in doing so one wheel of respondent's wagon locked in a wheel of the other. Alexander had attempted to drive around the Morris wagon by going between it and the...