Hubbard v. St. Louis & M. R. R. Co.

• Decision Date: 18 March 1903
• Citation: 72 S.W. 1073,173 Mo. 249
• Court: Missouri Supreme Court
• Parties: HUBBARD v. ST. LOUIS & M. R. R. CO.

72 S.W. 1073

173 Mo. 249

HUBBARD v. ST. LOUIS & M. R. R. CO.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

CONSTITUTIONAL LAW — JURY — VERDICT BY NINE — NEGLIGENCE — PERSONAL INJURY — DISCHARGE OF ONE TORT FEASOR.

1. The amendment to Const. art. 2, § 28, allowing nine jurors to find a verdict in courts of record, is constitutional.

2. Plaintiff, an employé of an express company, while riding in a wagon driven by another employé was injured by a collision with a street car. He received a small sum of money from the express company, and executed a release of said company from all claim arising from personal injuries in such collision. Held, that by the release of the express company the street car company was discharged, even though plaintiff could not have recovered from the company because the driver was his fellow servant.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Henry Hubbard against the St. Louis & Meramec River Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action for damages for personal injuries sustained by the plaintiff on May 5, 1900, at the corner of Eleventh and Locust streets, in St. Louis, in consequence of a collision between the defendant's car and a wagon of the American Express Company on which the plaintiff was riding, and by which company the plaintiff and the driver of the wagon were employed, their duties being to collect and deliver express packages. The negligence charged is running the car at a rapid and reckless rate of speed, and failure to keep a vigilant watch for persons or vehicles approaching the track. The answer is a general denial, a plea of contributory negligence, and a plea that the plaintiff had been paid in full for his injuries by the express company, and had executed a release to said company, which also released the defendant. The reply is a general denial.

The facts developed on the trial are: That the plaintiff and one Henry Vollinger were employed by the express company—Vollinger as the driver, and the plaintiff as a helper— to collect and deliver express matter. At the time of the accident the plaintiff was seated in the rear of the wagon. The wagon was going southwardly on Eleventh street, at a slow trot. When the driver approached the defendant's track, he looked west, and saw no car. He then looked east, and saw a car approaching. According to the plaintiff's witnesses, the car was then 75 feet east of the east side of Eleventh street, and, according to the testimony of the defendant's motorman in charge of the car, the car was about 40 feet east of the east side of Eleventh street. According to the plaintiff's evidence the car was running between 12 and 15 miles an hour, while according to the defendant's testimony it was running only 7 or 8 miles an hour. According to the plaintiff's testimony, when the driver of the wagon saw the car approaching, he at once guided his horses towards the west, hurried them up, and used every possible effort to get across the track before the car reached the crossing, but failed, the wagon was struck by the car, and the plaintiff was thrown out and injured. According to the defendant's evidence, when the motorman discovered the wagon approaching the track, he slackened the speed of the car, and at the same time the driver of the wagon slackened the speed of his horses, and finally stopped them when close up to the track. By that time the car was within 15 feet of the east side of Eleventh street. When the motorman saw that the wagon had stopped, he released the brakes, applied the power, and started forward. At about the same time the driver of the wagon started his horses and tried to cross the track. The result was a collision. The motorman himself testified in favor of the plaintiff, and said that, when he saw the wagon approaching the track, he at once attempted to slacken the speed of said car, but that he lost his head, and instead of turning off the power he turned it on at full force, and that the car struck the wagon when it was turned on at full force and the brakes off; that the car ran about two car lengths after the collision, before it was stopped; and that after the collision another motorman was put in charge of the car. The evidence showed that the gong was sounded on the car several times between Tenth and Eleventh streets.

The defendant offered in evidence the release that plaintiff gave to the express company, and showed the payments to him by the company of the amount therein specified, which was as follows: "Received of the American Express Company, forty-six dollars and sixty-one cents, and in consideration of the payment of said sum, I, Henry A. Hubbard, of St. Louis, state of Missouri, hereby remise, release and forever discharge the said American Express Company by reason of any matter, cause or thing whatever, whether the same arose upon contract or upon tort, and especially from all claim which I now have, or may hereafter have, arising in any manner whatever, either directly or indirectly, in whole or in part, from or on account of personal injuries sustained by me on or about May 5th, 1900, in collision of...