Joyce v. St. Louis Transit Co.

• Decision Date: 21 March 1905
• Citation: 86 S.W. 469,111 Mo. App. 565
• Parties: JOYCE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

86 S.W. 469

111 Mo. App. 565

JOYCE v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

March 21, 1905.

WITNESS—CONTRADICTION—INSTRUCTION— TRIAL—STREET RAILROADS—PERSONAL INJURIES —COLLISION — CONTRIBUTORY NEGLIGENCE— QUESTION FOR JURY.

1. A charge that the plaintiff vouches for the credibility of his witnesses, and cannot be heard to impeach their testimony or to question the veracity of any of them, given in a case where plaintiff had introduced a witness who testified to a state of facts directly contrary to what had been testified to by the other witnesses, was misleading, without further advice to the jury as to what was meant by impeaching the testimony of a witness, and hence was ground for granting a new trial on return of a verdict for defendant.

2. A party who puts a witness on the stand may prove by other evidence facts inconsistent with the witness' statement, even if the inconsistent evidence tends to show the witness committed perjury.

3. In an action against a street railroad for injuries to the plaintiff while an occupant of a buggy which was being driven by another person when it collided with defendant's car, evidence examined, and whether the plaintiff was charged with contributory negligence by the act of the driver held a question for the jury.

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

Action by Clarence Joyce against the St. Louis Transit Company. From an order sustaining a motion of the plaintiff for a new trial, defendant appeals. Affirmed.

Boyle, Priest & Lehman and Crawley & Jamison, for appellant. Johnson, Houts, Marlatt & Hawes, for respondent.

Opinion.

GOODE, J.

This is an appeal from an order of the court below sustaining a motion of the plaintiff for a new trial after a verdict had been returned against him. The action was for personal injuries received by the plaintiff in an accident on Franklin avenue, in the city of St. Louis, March 15, 1903. Joyce and Edward J. Kaiser had been driving about the city in a horse and buggy that day, and about 7 o'clock in the evening were traveling eastward on the north side of Franklin avenue. They started to drive diagonally over the street railway tracks of the defendant company, but the wheels of the buggy caught or locked in the tracks, rendering it impossible for a few minutes to drive off. Kaiser was driving. While the buggy was fastened in the tracks with the horse on the south side, and Kaiser urging him forward, a trolley car of the defendant approached from the east at a rapid speed, and crashed into the buggy, injuring the plaintiff. The negligence charged is that the motorman was running the car at a high and excessive speed; that he failed to ring the bell to warn the plaintiff of the approach of the car, and failed to stop the car in the shortest time and space possible after discovering the dangerous position of the buggy and its occupants. During the trial the plaintiff introduced the motorman himself as a witness, and said witness testified to a state of facts directly contrary to what had been testified to by the other witnesses. The motorman swore that instead of the occupants of the buggy striving to drive across the tracks diagonally they were driving along the track toward the car and drove into it. He said he endeavored to stop the car, but...