McLain v. St. Louis & S. Ry. Co.

• Decision Date: 31 March 1903
• Court: Missouri Court of Appeals
• Parties: McLAIN v. ST. LOUIS & S. RY. CO.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 909

100 Mo. App. 374

McLAIN v. ST. LOUIS & S. RY. CO.^*

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

STREET RAILROADS — COLLISIONS — INJURIES TO MOTORMAN — EVIDENCE — TRIAL — DEMURRER TO EVIDENCE — WAIVER — QUESTION FOR JURY — INSTRUCTIONS — CITY ORDINANCES — ACCEPTANCE — DAMAGES — FUTURE PAIN — MEDICAL EXPENSES — APPEAL — REVIEW OF EVIDENCE.

1. A demurrer to the evidence at the close of plaintiff's testimony is waived by the subsequent introduction of evidence on defendant's behalf.

2. Where at the close of all the evidence defendant renewed a motion made at the close of plaintiff's case in the nature of a demurrer to the evidence, and asked that the jury be instructed to find a verdict for defendant, which was refused, defendant is entitled, on an appeal, to a review of the evidence as a whole.

3. In an action for injuries to a motorman sustained in a collision with a car of another company at a crossing, where the evidence tended to show that the collision was attributable to the negligence of defendants' motorman in the management of his car as it approached the crossing, and contained contradictory, inconsistent, and improbable statements of opposing witnesses, the case was properly submitted to the jury.

4. In an action for injuries to a motorman by a collision with a car of another company at a crossing, the court charged that it was the duty of defendant company to use ordinary care to prevent collision and to observe the provisions of the city ordinances which gave plaintiff's car the right of way, and that if defendant in the operation of the car which collided with plaintiff's car failed to give plaintiff's car the right of way and negligently collided with plaintiff's car, by reason of which he was injured, plaintiff was entitled to recover. Held, that such instructions were not erroneous as misleading.

5. The instructions were not erroneous as charging that defendant's mere violation of the ordinance was negligence per se.

6. In an action for injuries to a street railway motorman by collision with a car of another company at a crossing, the fact that plaintiff proved that defendant had accepted a city ordinance which gave plaintiff's car right of way at the crossing did not require an instruction on such subject, since the ordinance was binding on defendant without acceptance.

7. In an action for personal injuries, plaintiff's recovery is not limited to past bodily pain and suffering, but he is also entitled to compensation for such future suffering as will result from his injuries.

8. Where a street railway motorman injured by a collision with a car of another company at a crossing was taken to a hospital by his employer, which he thereafter left, and was taken to another hospital, at which he incurred and paid for medical treatment, he was entitled to recover for such expenses in an action against the owner of the colliding car for the injuries sustained.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Action by Grant McLain against the St. Louis & Suburban Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an appeal by defendant from a judgment of the circuit court of the city of St. Louis in favor of plaintiff for the sum of $3,700 for personal injuries of a grave and permanent character inflicted on him by a street car of defendant striking a car of the St. Louis Transit Company. The catastrophe occurred about 4 o'clock in the afternoon of January 25, 1902, at the intersection of the double parallel tracks of defendant on Union avenue, extending northwardly and southwardly across Delmar avenue, and the double parallel tracks of the Transit Company on Delmar avenue, running eastwardly and westwardly across Union avenue, in the city of St. Louis. The plaintiff, in the performance of his duties in the employ of the Transit Company, was operating one of its cars as a motorman. The petition charged that the Transit Company had the right of way across the tracks of defendant at Union and Delmar avenues, and it was the duty of defendant's servants in charge of its cars to wait before such crossing until the car of the Transit Company had cleared it; that while plaintiff was in charge of a car of the Transit Company, and such car was being lawfully propelled eastward on Delmar avenue, over the crossing and right of way, defendant's servants in charge of and operating one of its cars over its tracks on Union avenue carelessly and negligently failed to wait before such crossing until it was cleared by the Transit car, and carelessly and negligently so ran defendant's car upon such crossing and tracks of the Transit Company that they caused defendant's car to collide with the car of the Transit Company; that at the time there was in force in the city of St. Louis an ordinance giving the Transit Company the right of way over such crossing, and the right to cross its east-bound car first over such crossing, and defendant was prohibited from entering upon such crossing while it was in use by the Transit Company, and defendant's servants in charge of its car violated such ordinance by not waiting before such crossing until the Transit Company's car had cleared the crossing, and such violation directly contributed to cause the collision, and defendant, in consideration of its franchise from the city to operate its railway upon such streets at such place, had agreed to obey the provisions of the ordinance. Defendant's answer contained a general denial, and a general plea of contributory negligence, and further charged, as specific acts of contributory negligence, that plaintiff so carelessly operated the Transit car as it approached and went on the crossing that he caused it to collide with defendant's car; that he caused and permitted it to come in contact with and collide with defendant's car by carelessly and negligently failing and omitting to look and listen for and watch defendant's car, and to use ordinary care to prevent the collision, when by so doing he might have avoided it; that he negligently failed to bring the Transit car to a stop before he ran it on the crossing; that the rules of the Transit Company, binding on plaintiff, provided that motormen should not take any risk in crossing tracks at any point, whether the company's cars had the right of way or not, and should be prepared to stop to avoid a collision; but plaintiff negligently, and in violation of such rule, ran his car on such crossing when there was a risk of a collision, and so ran his car without stopping.

The record reveals the following state of facts:

Some snow had fallen just prior to the casualty, but how heavily or whether it was then continuing was controverted. However that may be, at the time stated a car of the Transit Company approached from the west, moving eastwardly on the south track, a slight down grade, and when about 200 feet west of Union avenue its speed was reduced, but its movement toward the crossing was continued. At the same time a car of the Suburban Company drew near Delmar avenue from the south, moving northwardly on the east track, and when about 125 feet south of Delmar avenue its speed was diminished, but its progress towards the crossing continued, until it was about 40 feet from the track of the Transit Company, when the car of the latter started to cross the intersecting tracks of defendant, and had gotten partly over when the Surburban car struck the Transit car in front of its rear trucks, west of the center of the latter car.

Plaintiff, on his own behalf, testified that when he first observed the Surburban car, then about 200 feet from the crossing, with the line of vision between unobstructed, he threw off the power, reducing the speed of his car to a rate, as he drew near Union avenue, not exceeding two miles per hour; that when he first observed the defendant's car its motorman was nearly a block from the crossing, and brought the car he was operating at about half rate of speed, till within 40 feet of the car of witness, when he further lessened the speed, and then witness started his own car across at a speed of about two miles an hour; that he had observed nothing wrong about the Suburban car, and its motorman was operating it in the usual way when about to stop, until the Suburban car had reached within 35 or 40 feet, and the Transit car was on the east track of the Suburban line, when its car shot forward with terrific speed, its motorman disappearing from its front end. Plaintiff, continuing, stated that he then threw half the power on his car at one movement, being all it would stand, in the effort to clear the crossing, as when he saw the Suburban car propelled forward at an increased rate of speed he believed a collision imminent, and he tried to clear the crossing; that his own car was then moving without the power being on, and if he had reversed his car it would have rendered it motionless, "paralyzed," for an instant, during which the Suburban car would have...