Jersey Farm Dairy Co. v. St. Louis Transit Co.

• Decision Date: 01 December 1903
• Citation: 103 Mo. App. 90,77 S.W. 346
• Court: Missouri Court of Appeals
• Parties: JERSEY FARM DAIRY CO. v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 346

103 Mo. App. 90

JERSEY FARM DAIRY CO. v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

December 1, 1903.

STREET RAILROADS—INJURIES TO WAGON— ACTIONS — EVIDENCE — NONSUIT—INSTRUCTIONS — UNCOMPLETENESS — CONFLICTING.

1. In an action against a street railroad for injuries to a wagon a nonsuit was properly denied where, on plaintiff's evidence, the wagon was visible for the length of a block on the same track as that on which the car was running, and the motorman might have avoided the collision.

2. In an action against a street railroad for injuries to a wagon, an instruction to find for plaintiff if the motorman saw or could have seen the wagon in time to warn the driver and enable him to drive off, or in time to stop the car, before collision, was incomplete in that it failed to also state that the motorman must have neglected to warn plaintiff's driver, and that such neglect must have been the proximate cause of the accident.

3. In an action against a street railroad for injuries to a wagon, an instruction to find for plaintiff if the motorman could have seen the wagon in time to warn the driver and enable him to drive off, or in time to stop the car, before collision, was in conflict with instructions given for defendant to the effect that it was not liable if its servants used ordinary care to stop the car as soon as they saw, or might have seen, plaintiff's wagon in a position of danger, and which accepted that theory as the only ground of recovery.

Appeal from St. Louis Circuit Court; J. R. Kinealy, Judge.

Action by the Jersey Farm Dairy Company against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. F. A. Wind, for respondent.

Opinion.

GOODE, J.

Action for injuries to a team of horses, harness, wagon, and contents of the wagon, caused by a rear-end collision with an electric car. While plaintiff's employé, John Walton, was driving one of plaintiff's milk wagons on November 24, 1902, the wagon was hit by a car of the transit company. It was about 5 o'clock of a drizzly morning that the accident occurred. Walton had driven north on Eleventh street to Chouteau avenue, turned west on Chouteau to Twelfth street, then again north on Twelfth, intending to leave that street and go west on Gratiot. He had reached Gratiot street, and was in the act of turning into it, when the car hit the wagon behind, inflicting the damages complained of in this case, and knocking Walton, the driver, into unconsciousness. Walton's testimony is that he was driving partly on and partly off the north track, in a trot; that 20 feet back of where he was struck he looked to the rear before he turned westward, to see if a car was coming, but saw no car, and as he was turning west the crash came. Three passengers on the car testified they heard no gong nor any sound of brakes prior to the collision; that the car was...