Latson v. St. Louis Transit Co.

• Decision Date: 21 December 1905
• Parties: LATSON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 109

192 Mo. 449

LATSON v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. STREET RAILROADS—COLLISION—NEGLIGENCE.

Where the driver of a vehicle, owing to the fact that another vehicle was approaching her between the curb and a street car track, drove upon the track about 40 feet ahead of a car approaching at the rate of 6 or 7 miles an hour, and while the vehicle was preceding the car a collision occurred, the motorman was guilty of negligence, under an ordinance requiring a motorman to stop on the first appearance of danger.

2. SAME—CONTRIBUTORY NEGLIGENCE.

The driver of the vehicle was not guilty of contributory negligence either in going upon the track or in driving along ahead of the car.

3. SAME—INSTRUCTIONS—CONTRIBUTORY NEGLIGENCE.

In an action for injuries sustained in a collision between plaintiff's vehicle and a street car, an instruction for plaintiff was not erroneous for failing to take into consideration the contributory negligence of plaintiff; it having authorized a verdict for plaintiff only in case she was exercising ordinary care at and before the time of the injury.

4. APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Defendant could not complain of an instruction because it merely required the motorman to use common-law care, while the petition charged a violation of an ordinance requiring a motorman to stop on the first appearance of danger.

5. SAME—EVIDENCE TO AUTHORIZE INSTRUCTIONS.

Where, in an action for injuries sustained by plaintiff in a collision between her vehicle and a street car, plaintiff's evidence showed that the car was running 15 miles an hour and that the motorman could have seen the vehicle when he was more than 500 feet away, and defendant's evidence showed that the car was going at the rate of 6 or 7 miles an hour when the motorman saw the vehicle on the track 40 feet ahead, an instruction authorizing a recovery for plaintiff if by reason of excessive speed the motorman was unable to avert a collision was not objectionable on the ground that there was no evidence showing within what space the car could have been stopped.

6. SAME—MODIFICATION OF INSTRUCTIONS.

Defendant requested an instruction that if the motorman, on seeing the vehicle, reversed his power and applied the brakes, and thus would have averted the accident but for the fact that the driver of the vehicle was prevented from getting off the track by reason of another vehicle in front of it, and that the collision was due to such failure, plaintiff was not entitled to recover unless the motorman knew or could have known that the plaintiff's vehicle was so obstructed in time to have stopped the car, which instruction was modified by adding, "unless excessive speed prevented stopping the car." Held, that the modification was proper; it appearing that if the motorman had applied his brakes as soon as he saw the danger the accident would have been averted, and the special defense pleaded being that the accident was caused by plaintiff, who was driving so close in front of the car as to render a collision unavoidable.

7. SAME—REFUSAL OF INSTRUCTIONS.

Where, in an action for injuries sustained in a collision between plaintiff's vehicle and a street car, there was nothing to show that the motorman saw that plaintiff, driving ahead of the car, was attempting to get off the track, it was proper to refuse an instruction that the motorman had a right to assume that the driver of the vehicle would use reasonable diligence and get off the track and out of the way, unless the motorman knew, or by the exercise of reasonable care might have seen or known, that the vehicle was hindered or impaired in its progress by a vehicle in front of it.

8. SAME—CONTRIBUTORY NEGLIGENCE—RELIANCE ON CARE OF MOTORMAN.

The driver of a vehicle has a right to presume that a motorman will so run his car that a collision will not occur with a vehicle, even though the driver of the vehicle does not do his duty.

9. SAME—COLLISION—ACTION—INSTRUCTIONS.

In an action for injuries sustained in a collision between plaintiff's vehicle and a street car, the motorman having testified that the car was running at the rate of six or seven miles an hour when he saw the vehicle preceding the car, and that he then applied the brakes and reversed the current, it was proper to refuse an instruction that, if the motorman was unable to stop the car, plaintiff could not recover.

10. TRIAL—INSTRUCTIONS—REFUSAL—OTHER INSTRUCTIONS.

There is no error in refusing instructions substantially covered by others.

11. APPEAL — HARMLESS ERROR — ADMISSION OF EVIDENCE.

In an action for injuries, there was no error prejudicial to defendant in admitting testimony that plaintiff had visited certain places in an attempt to regain her health; it appearing that in consequence of such visits her health had improved.

12. SAME.

In an action for injuries, defendant having sought to have plaintiff identify written statements said to have been made by her, there was no prejudice to defendant in her testimony that she did not sign one of them; the statements not being offered in evidence.

13. DAMAGES—INJURIES TO PERSON—EXCESSIVE DAMAGES.

Where, in an action for injuries, it appeared that plaintiff was in good health prior to the accident, and that she received injuries to her side, uterus, ankle, spine, and nerves; that she was suffering from traumatic neurosis, her condition being one of nervous debility and exhaustion; and that she probably would not fully recover—a verdict for $9,000 was not excessive.

Marshall, J., dissenting.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Alice Z. Latson against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehmann, Geo. W. Easley, and Edw. T. Miller, for appellant. Chester H. Krum and William Zachritz, for respondent.

MARSHALL, J.

This is an action to recover $20,000 damages for personal injuries received by the plaintiff on the 25th of May, 1901, in consequence of one of defendant's cars colliding with the rear of a stanhope, in which the plaintiff was riding, on Olive street, between Tenth and Eleventh streets, in the city of St. Louis; the accident occurring about 9:25 a. m. The plaintiff recovered a judgment for $9,000, and the defendant, after proper steps, appealed.

The Issues.

The negligence charged in the petition is a violation by the defendant of the vigilant watch ordinance and of the speed ordinance of the city of St. Louis. The answer is a general denial, with a special plea that whatever injuries the plaintiff received were caused by the vehicle in which she was riding being driven in front of the car "so close thereto as to render a collision therewith unavoidable." The reply is a general denial.

The plaintiff introduced evidence tending to show: That on the morning of the day on which the accident occurred she was riding in a stanhope with Mrs. Ramm. That they stopped on the east side of Eleventh street, just south of Olive street, for a few moments, where plaintiff left the vehicle to transact some business in a store at that point. That Mrs. Ramm then turned, and by reason of vehicles being on the east side of Eleventh street, she had to go to the west side of that street, and thence to Olive street, where she turned east. That there was a vehicle coming west on the south side of Olive street between the car track and the curbstone, in consequence of which she drove onto the east-bound track. That before so doing she looked westwardly and saw a car coming, which was, at that time, west of the west line of Twelfth street. The width of Twelfth street is not given in the record, but the block from Twelfth to Eleventh is shown to be 469 feet. That the reason she turned onto the street car track was to avoid collision with the vehicle that was coming west on the south side of Olive street. That, in the language of Mrs. Ramm: "I had the right of way, but this rig had possession of the driveway. It was necessary for me to drive in the car track." That after getting onto the car track she again looked back, and saw the car on the east side of Twelfth street. That afterwards she left the plaintiff to watch the car, while she directed her attention to the front. That the plaintiff then looked a third time, and the car was at the east side of Eleventh street. That the plaintiff then looked a fourth time, and the car was about to strike them, and she told Mrs. Ramm, to get off of the track as quickly as possible. That Mrs. Ramm did not leave the track immediately after encountering the first vehicle coming west, because there was a second vehicle also coming west, on the car track, and so close to the first that it was impossible for her to leave the track, until the second vehicle had pulled off of the track onto the driveway, and, in doing it, the wheels of that vehicle caught or slid on the track, which made it necessary for her to check her horse momentarily. That they were driving at a walk. That as soon as the second vehicle got out of the way, Mrs. Ramm immediately commenced to turn off of the track on to the driveway south thereof, but before she had succeeded in clearing the track, the car struck the hind wheel of the stanhope, lifted it about two or more feet above the ground, and the occupants were thrown out, and the plaintiff injured. The vehicle in which the plaintiff was riding went eastwardly 82 feet on the track on Olive street before the car collided with it. Mrs. Ramm testified that the reason she did not turn to the left was because there was a west-bound track on that side of the street and also because there were other vehicles on that side of the street, and that to turn to the left would have been an illegal act. The evidence for the plaintiff further showed that the car was traveling at a speed of 15 miles an hour. Prior to the accident the plaintiff was in good...