Hyman v. St. Louis Transit Company
| Decision Date | 29 November 1904 |
| Parties | HYMAN, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.
Judgment in trial court for defendant and appeal from order granting a new trial on motion of plaintiff.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Boyle Priest & Lehmann, George W. Easley and Morton Jourdan for appellant.
Crigler & Kelley for respondent.
While respondent was driving a wagon loaded with coal northward on Tenth street in the city of St. Louis, a trolley car of the Transit Company ran into the rear of the wagon, injuring him and the wagon. This action was brought for the consequent damages. The respondent had entered Tenth street at O'Fallon and turned north. Before making the turn he looked both ways, he says, and saw no car. Afterwards he proceeded toward Cass avenue on his route for two hundred feet or more, and without looking back until the colliding car was nearly on him. Then he attempted to turn out of the track but was too late. He testified to hearing no bell or other signal until almost the instant of the collision, when he heard somebody shout a warning. Some witnesses in his behalf testified that the wagon was visible one hundred and fifty feet or so ahead of the car. The testimony for the appellant went to show that Hyman heard the car approaching and turned far enough to the west to permit it to pass safely; whereupon the motorman increased the speed of the car in order to pass, and just then Hyman drove the wagon back on the east track and the collision resulted. As it was the third of July at five o'clock in the afternoon, there was broad daylight. The Transit Company obtained a verdict, which the court set aside because of an instruction to the jury which was thought to be erroneous. The instruction told the jury that if they found from the evidence Hyman knew of the approach of the car and failed to exercise ordinary care to avoid a collision, he could not recover. We discern no error in that charge. Respondent relied on the humane or last chance rule for recovery and the court submitted the issues on that theory. The particular negligence charged is that the motorman, after he saw Hyman's danger, failed to warn him, or to use the brakes and other appliances for stopping the car, and negligently ran against the wagon. In the first instruction the court very correctly told the jury that if they believed the respondent was unaware of the peril he was in while proceeding along the track, until too late to avoid a collision, but the motorman was aware of the peril in time to stop the car or to sound a warning and thereby avert the accident, and negligently failed to sound the gong or stop the car,...
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