Moon v. St. Louis Transit Co.

• Decision Date: 27 November 1911
• Citation: 141 S.W. 870,237 Mo. 425
• Parties: MOON v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

141 S.W. 870

237 Mo. 425

MOON v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

November 27, 1911.

1. EVIDENCE (§ 492)—OPINION EVIDENCE— SUBJECT OF EXPERT TESTIMONY.

A witness need not be an expert in order to be competent to testify as to the speed of a street car.

2. STREET RAILROADS (§ 117)—OPERATION— INJURIES—CONTRIBUTORY NEGLIGENCE.

Where a coachman, who was driving about 8 miles an hour and could have stopped the carriage in the space of 8 or 10 feet, while himself about 22 feet from a street car track saw a car two blocks away, but the horses' heads being about 10 feet from the track, he was not guilty of negligence as a matter of law in failing to stop, even though the car was going so rapidly that it struck the carriage before he could cross the track, for, from the short distance he was from the track, it would have been impossible for him to have stopped without having the heads of his horses in danger.

3. NEGLIGENCE (§ 89)—IMPUTED NEGLIGENCE —HUSBAND AND WIFE—CONCURRING NEGLIGENCE.

The negligence of neither a husband nor his servant can be imputed to the wife in case she is injured by his and another's concurring negligence.

4. NEGLIGENCE (§ 90)—IMPUTED NEGLIGENCE —MASTER AND SERVANT.

While ordinarily the negligence of a third person cannot be imputed to one who is injured, the negligence of a servant is imputable to the master, and, when contributing to his injury, will completely bar his recovery.

5. STREET RAILROADS (§ 112) — INJURIES — PLEADING—BURDEN OF PROOF.

Where a street railway alleged that an injury was occasioned by the negligence of plaintiff's coachman, the burden was upon it to prove that the coachman was plaintiff's servant.

6. STREET RAILROADS (§ 117) — INJURIES— QUESTIONS FOR JURY.

In an action against a street railway, where it was contended that a driver, whose negligence contributed to the injury, was plaintiff's servant, the evidence being conflicting the question was for the jury, and the court could not as a matter of law declare that the driver was plaintiff's servant.

Graves, P. J., dissenting.

In Banc. Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Rebecca A. Moon against the St. Louis Transit Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Reversed and remanded.

The plaintiff instituted this suit against the defendant to recover the sum of $15,000 damages for personal injuries sustained through the alleged negligence of the defendant. A trial was had in the circuit court of the city of St. Louis, which resulted in the plaintiff taking an involuntary nonsuit, with leave to move to set same aside. Upon motion for that purpose being filed and overruled, the plaintiff duly appealed the cause to this court.

The facts are few, and are substantially as follows, as appear from appellant's and respondent's statements of the case:

Appellant's evidence tended to show that she was riding in her husband's carriage, which was driven by her husband's driver, her husband sitting by her side, about 11 o'clock p. m. on February 13, 1904. While crossing Taylor avenue at its intersection with Washington boulevard, her husband's carriage was struck by a St. Louis Transit Company car, then going at a speed estimated from 17 to 25 miles an hour. No gong or bell was rung or any other warning given of the approach of the car. The car had on it a small, dim light. The carriage when struck was knocked upon its side, and dragged from 40 to 100 feet, the plaintiff was cut and bruised severely, her neck twisted and strained so as to cause her great pain and suffering for many years, and a dizziness caused which at time of trial still existed. The limit of speed permissible under the ordinance in evidence, No. 21,113, was 15 miles per hour, restrained, however, by that provision which provided that it should not be construed as sanctioning or allowing any car at any time or place to run at any rate of speed which may be dangerous to the safety of passengers or persons on the streets. The driver of the carriage testified that, when he got about 100 feet from the track, he slowed down and checked his horses and listened for a car, and hearing none, he increased his speed to about the same gait that he was going just before he slacked up, and from that time until he was struck he looked both ways and listened for cars. He did not hear or see any and proceeded to cross the tracks going from 6 to 8 miles an hour. When his horses got about 8 feet from the track, he being about 20 feet therefrom, he saw a car coming from the south, he thought about 150 or 160 feet away. He judged he could cross safely, but, when his horses were about 3 feet from the track, he saw that the car was coming much faster than he at first thought, and he then whipped up. The carriage was struck on the rear hub. The driver testified that the car was going about three times as fast as the carriage at the time he was struck, and that he could have stopped the carriage in a distance of from eight to ten feet. There was no evidence as to the distance in which the car could have been stopped. The driver also testified that he was coachman for the family; drove Mr. and Mrs. Moon; took orders from both of them; and that Mr. Moon was his master and Mrs. Moon was his mistress.

Jno. A. Gilliam, for appellant. Boyle & Priest and Thos. M. Pierce, for respondent.

WOODSON, J. (after stating the facts as above).

1. There are but three legal propositions presented by this record for determination, namely: First. Did the court err in excluding the testimony of witnesses offered to show the speed at which the car was running at the time of and just prior to the collision, who were not shown to have been experts in that regard? Second. Was the driver of the carriage guilty of negligence as a matter of law? Third. Was his negligence imputable to the appellant? We will dispose of those questions in the order stated.

The first proposition mentioned has been definitely settled against the respondent by this court in a number of cases. For instance, in the case of Stotler v. Chicago & Alton Railway Co., 200 Mo. 123, loc. cit. 128, 98 S. W. 509, Judge Lamm quoted with approval the following language of Judge Black in the case of Walsh v. Missouri Pacific Railway Company, 102 Mo. 582, 14 S. W. 873, 15 S. W. 757, to wit: "The first point made by the appellant is that there is no competent evidence showing that the train was running at a rate of speed exceeding six miles an hour. This case is quite unlike that of Williams v. Railroad, 96 Mo. 275 . There the witness did not see the moving cars. He heard the noise from the collision only, and was at his stable, and not at the place of the accident. Under such circumstances his evidence was deemed to be of no value. Here the witness Katz, who says the train was running 18 or 20 miles per hour, was standing in his door with the train in front of him. It was in the night-time, it is true, but he says the streets were lighted, and that there were lights on the cars. The case just cited asserts the rule to be that the rate of speed of moving cars may be shown by the opinion of a witness who saw the cars in motion. Such an opinion no more involves a question of science than does an opinion concerning the speed of a horse. One who sees a moving train and possesses a knowledge of time and distance is competent to express an opinion as to the rate of speed at which a train is moving. Railroad v. Van Steinburg, 17 Mich. 99. See, also, Pence v. Railroad, 79 Iowa, 389, 44 N. W. 686. The opinion of one who has never timed moving cars may not be as reliable as the opinion of one who has had such experience, but that goes to the weight, and not the competency, of the evidence." The witness in that case was not shown to have been an expert upon the question of the speed of trains, but gave his opinion as to the speed it was going, simply from seeing it run. Judge Lamm in that case adds "Obviously it would be nonsense to say that a rate of speed could only be shown by expert testimony. If that were so, then a plaintiff injured by negligent speed, who was so unfortunate as to have no premonition of his coming fate, and who, therefore, had omitted to provide himself with experts at hand and so located as to see the train and judge of its speed at the critical time, would be in hard lines indeed. The story of such a case would run thus: No experts, no case." We are therefore of the opinion that the trial court erred in rejecting the evidence offered by appellant.

2. Counsel for appellant also insist that the court erred in holding as a matter of law that the driver of the carriage was guilty of negligence which directly contributed to the injury. There can be no question but what that ruling of the court was erroneous, without the testimony of the driver, which was to the effect that when he was 22 feet from the track he saw or could have seen a car approaching at Olive street, two blocks away, and that he was driving about 8 miles an hour, and could have stopped the carriage in a space of 8 or 10 feet. Upon that evidence counsel for respondent insist that if the driver when 22 feet east of the track saw the car, or could have seen it two blocks away, and could have stopped the carriage in 8 or 10 feet, and failed to do so, then he was guilty of negligence as a matter of law. In other words, it is contended that the driver's own testimony shows that he had ample time and space within which to have stopped the carriage, and thereby have avoided the collision, and, having failed to so do, he was guilty of negligence as a matter of law. That is, if he saw the car at that distance and did not stop, he was guilty of negligence in not doing so, and if he could have seen it by looking, but did not do so, then he was guilty of negligence in failing to look.

If the...