Linder v. St. Louis Transit Co.

• Decision Date: 15 December 1903
• Parties: LINDER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

77 S.W. 997

103 Mo. App. 574

LINDER v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

STREET RAILROADS — NEGLIGENCE — PERSONAL INJURIES — QUESTION FOR JURY — INSTRUCTION — MODIFICATION.

1. In an action against a street railroad for personal injuries it is a question for the jury whether it was negligence in a citizen, in daylight, to drive about 25 feet to cross, in full view of the motorman, a street car track on which a car was moving in his direction about 200 feet distant, although at a rapid rate of speed.

2. In an action against a street railroad for personal injuries the defendant requested the court to charge that by "ordinary care" is meant "such care as persons of ordinary prudence and caution would exercise in the same situation, and under like circumstances." Held, that the court's modification thereof by adding, "And the failure to exercise such care is negligence in the sense in which that term is used in these instructions," is not cause for reversal.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by J. L. Linder against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. P. P. Mason, for respondent.

REYBURN, J.

This action for personal injuries was begun before a justice of the peace of the city of St. Louis, tried anew in the circuit court, and from judgment for plaintiff defendant has appealed.

About 5 o'clock in the afternoon of October 1, 1900, plaintiff, a physician, residing in East St. Louis, was in a bookstore on the south side of Pine street between Seventh and Eighth streets. An alley extends southwardly from Pine street between the streets named, and the store in question was a door or two west of the alley. Plaintiff emerged from the bookstore, deposited the books he had purchased in his buggy, which was in front of the store, turned toward the west with the horse not hitched. As he came out of the store he saw an east-bound car passing his vehicle, and before getting into the buggy he looked, and observed further eastward a west-bound car approaching Seventh street. After placing the books in his vehicle, he entered it, and started the horse, with the intention of crossing to the north side of Pine street and proceeding eastwardly. He passed the south track in safety, and was partially across the north track, when the west-bound car he had observed struck about the center of the rear wheel of the buggy, overturning it, and plaintiff, holding to the reins, was dragged a distance, variously estimated by different witnesses, before both conveyances were stopped. There was no proof of the distance between Seventh and Eighth streets, nor of the exact width of Pine street; but appellant in argument insists that the block lying between the first-named thoroughfares was an ordinary city block about 300 feet in length, and plaintiff estimated that his buggy had moved 20 feet from where it had been to the point of collision. The negligence averred in the complaint was the defendant's agents and servants in charge of the colliding car propelled same at a greater rate of speed than allowed by law and the ordinances of the city, and without giving notice of its approach to persons in front of said car by ringing the bell or gong or attempting to check the speed.

1. It is urged that the imperative instruction asked at the conclusion of the testimony on behalf of the plaintiff should have been given, as the plaintiff's own testimony showed he was guilty of such contributory negligence as barred his recovery. Accepting, as we are bound to do, the plaintiff's statement for the purpose of considering this instruction, the colliding car was about 200 feet away, if east of...