Jersey Farm Dairy Co. v. St. Louis Transit Co.
| Decision Date | 01 December 1903 |
| Citation | 77 S.W. 346,103 Mo.App. 90 |
| Parties | JERSEY FARM DAIRY COMPANY, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. R. Kinealy Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Sears Lehmann with Geo. W. Easley for appellant.
(1) The court erred in giving instruction No. 1 for the plaintiff. This instruction singles out certain facts and tells the jury if they find these facts to be true, then as a matter of law they shall find for the plaintiff. Such instructions are erroneous. Chappell v. Allen, 38 Mo. 213; Rose v. Spies, 44 Mo. 20; Bank v. Currie, 44 Mo. 91; Meyer v. Railroad, 45 Mo. 137; Koenig v. Life Assn., 3 Mo.App. 596; Schaffer v. Lealy, 21 Mo.App. 110. (2) An instruction which ignores a defense on which there is some evidence is erroneous. Laughlin v Gerardi, 67 Mo.App. 372; Cameron v. Hart, 57 Mo.App. 142; Carroll v. Railroad, 60 Mo.App. 465; Maltman v. Harris, 65 Mo.App. 127; Sheedy v. Streeter, 70 Mo. 679; Hoffman v. Parry, 23 Mo.App. 20; Hohstadt v. Daggs, 50 Mo.App. 240; Wood Medicine Co. v. Bobbst, 56 Mo.App. 427; Clark v. Hammerle, 27 Mo. 55; Sawyer v. Railroad, 37 Mo. 240; Hayner v. Churchill, 29 Mo.App. 276; Griffith v. Conway, 45 Mo.App. 574.
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 employee, 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 five 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 twenty 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 going at a moderate speed--five or six miles an hour. It stopped immediately after hitting the wagon, which was then faced west; the morning was dark and rainy, but a wagon could be seen easily a block away.
The motorman testified he followed the same route Walton had, running west to Chouteau and then north on Twelfth; that his speed was six miles an hour and the grade downward; that he could see about a block ahead; saw the wagon of the dairy company as soon as he turned into Twelfth street; it was then five feet outside the track on the right hand; when the car drew near, the team and wagon turned westward and crossed the track; that he immediately rang his bell, applied the brake and reversed the power, but was unable to stop the car before it crashed into the vehicle.
We can order no nonsuit in this case as the defendant insists we should; for, accepting the testimony for the plaintiff as true, the wagon was visible the length of the block on the same track the car was running on, and the motorman might have stopped or slackened speed and thus have avoided the collision. Klockenbrink v. Railroad, 81 Mo.App. 351; Shanks v. Traction Co., 101 Mo.App. 702, 74 S.W. 386; Noll v. Transit Co., 100 Mo.App. 367, 73 S.W. 907. The circuit court did right to submit the case to the jury; but erred, we think, in this instruction given at the instance of plaintiff:
"If the jury find and believe from the evidence that a car of defendant in charge of one of its motormen, ran into a wagon of plaintiff, while the driver of said wagon was driving along Twelfth street and partly in defendant's...
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