Houts v. St. Louis Transit Co.

• Decision Date: 13 December 1904
• Citation: 108 Mo. App. 686,84 S.W. 161
• Parties: HOUTS v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

84 S.W. 161

108 Mo. App. 686

HOUTS v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

December 13, 1904.

STREET RAILROADS — DEFECTIVE TRACK — INJURIES TO EMPLOYÉ — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTIONS FOR JURY — FELLOW SERVANTS — DIRECTING VERDICT — AMENDING PETITION.

1. Where the track of a street railroad had been in a defective condition for more than a month, the company is guilty of negligence either in knowing of the defect and not repairing it, or in failing to discover the defect.

2. Mere knowledge by a street car conductor that the track is defective will not defeat his right to recover for resulting injuries, if the track is not so dangerous as to threaten an immediate accident, or if he might reasonably suppose that the car could be run over it by using care and caution.

3. Whether the risk assumed by a street car conductor in the use of a defective track was such as to threaten immediate danger, or the defect was of such a character that he might reasonably suppose he could, by the use of caution, continue to use the track safely, are questions of fact for the jury.

4. The motorman and conductor on a street car are fellow servants.

5. To authorize the court to direct a verdict, the evidence should be so strong that reasonable minds could come to but one conclusion.

6. Defendant cannot complain of the amendment of the petition at the close of plaintiff's evidence by striking out one of the specific allegations of negligence on the part of defendant.

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

Action for personal injuries by Thomas J. Houts against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. McShane & Goodwin, for respondent.

BLAND, P. J.

The material allegation of the petition on which the cause was tried is as follows: "Plaintiff says that on or about the 26th day of April, 1903, he was conductor on one of defendant's west-bound cars of the Easton avenue line, and that at or near the intersection of Easton and Belt avenues, as said car was moving in a westwardly direction, through the negligence and wrongful acts of the defendant, struck and collided with an east-bound car of the defendant, causing the injury hereinafter complained of. For a more specific allegation of negligence plaintiff says that defendant failed to provide and maintain safe and proper tracks and roadbed upon which to run its said cars, in this: that at the point aforesaid the rails of said track were bent, spread, sunk down, and unlevel, and that the track bed was uneven, hollowed, and needed filling in, which defects were known, or by the exercise of ordinary care could have been known, to defendant, which said defects were unknown to plaintiff, and that they were in such a position as to be unseen and unobserved by the plaintiff while he was in the discharge of his duties on said car, which said negligence on the part of defendant directly contributed to the injury herein set out. * * * Plaintiff says that by reason of the negligence and wrongful acts aforesaid he was violently struck, cut, bruised, and injured; that he sustained serious and permanent injuries, in this: that his skull was fractured, causing concussion of the brain; that his head was cut and bruised, and his jawbone injured; that his face was cut and bruised, and that ribs on both sides of his body were broken; that both of his legs were cut and bruised, left knee injured, and left shin cut and gashed; that by reason of said injury his sense of hearing and sight has been permanently injured; that because of the fracture of his skull a large portion thereof has been removed, exposing his brain, thus placing him in imminent danger at all times; that by reason of said injuries he has suffered great pain of body and anxiety of mind; that by reason of said injuries he is affected with loss of memory; that he has been, and will be throughout life, subject to violent headaches; that his hair is falling out and prematurely turning gray, and will likely continue to do the same for some time; that because of said injuries his earning capacity has been greatly diminished; that he has been, and will be throughout life, unable to pursue his usual or any occupation; and that on account of said injuries he has expended, and will throughout life be compelled to expend, large sums of money for doctors, medical attendance, medicines, and nurses. Wherefore, by reason of the negligence and wrongful acts of the defendant as above set out, plaintiff has been damaged in the sum of ten thousand dollars ($10,000), for which amount, together with his costs herein, plaintiff prays judgment." The answer was a general denial, and an affirmative defense that plaintiff assumed the risk of defects in the track; also the contributory negligence of plaintiff and his fellow servant. The affirmative defense was put in issue by a denial.

The evidence shows that defendant had a double railway track in the center of Easton avenue, which runs east and west in the city of St. Louis. Cars traveling west run on the north track. A short distance west of where Easton avenue crosses Belt avenue, in the western part of the city, the north rail of the north track, for a short distance, was so sunken and sagged as to be plainly noticeable to persons traveling over that portion of the street on defendant's cars. The track had been in this condition for a month or more prior to the day plaintiff was injured. The collision occurred in this manner: When the west-bound car, on which plaintiff was conductor, reached the sunken portion of the track west of Belt avenue, the car trucks jumped the track, sending the west end of the car to the north, and the east end to the south, of the track, and onto or so near the south track that a passing east-bound car struck it, resulting in injury to plaintiff. The west-bound car, according to the evidence of the conductor, was traveling at an ordinary rate of speed, but according to the evidence of a female passenger it was traveling at...