Moore v. St. Louis Transit Co.

• Decision Date: 22 February 1906
• Parties: MOORE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 1060

193 Mo. 411

MOORE v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. MASTER AND SERVANT—PERSONAL INJURIES —DEFECTIVE RAIL — EVIDENCE — QUESTION FOR JURY.

In an action by a street car conductor for injuries resulting from the derailing of the car because of an alleged defective rail, evidence held sufficient to justify submission to the jury of the question of defendant's negligence.

2. SAME—COMBINED NEGLIGENCE OF MASTER AND FELLOW SERVANT.

A master is liable to a servant injured by the master's negligence, even though the negligence of a fellow servant contributed to the result.

3. SAME—CONTRIBUTORY NEGLIGENCE—STREET CAR—EXCESSIVE SPEED—RESPONSIBILITY OF CONDUCTOR.

Where a street car conductor was injured through the derailment of the car because of an alleged defective rail, the fact that the car was at the time running at an excessive rate of speed and might not have left the track had it been running slower did not show the conductor to be guilty of contributory negligence, since, though he had general control of the car, it was not within the scope of his duty to regulate the speed at all times.

4. TRIAL — INSTRUCTIONS — ASSUMPTION OF FACT IN ISSUE.

In an action by a street car conductor for injuries from the derailment of the car because of an alleged defective rail, an instruction that if the jury believed that plaintiff was injured by reason of the car leaving the track on account of a defective rail, and not because of any fault on his part, they should find for plaintiff, etc., was not objectionable on the ground that it assumed that the rail was defective.

5. MASTER AND SERVANT—INJURIES TO SERVANT—VIOLATION OF ORDINANCE—CONTRIBUTORY NEGLIGENCE.

Where a master's orders require a servant to violate an ordinance, the master cannot, in action by the servant for injuries, claim that the violation of the ordinance constituted contributory negligence.

6. TRIAL—INSTRUCTIONS—IGNORING ISSUES.

In an action by a street car conductor for personal injuries from the derailment of a car through an alleged defective rail, in which there was evidence that the car was running at an excessive rate of speed, but also evidence that that rate of speed was required by the schedule time, an instruction implying that plaintiff could not recover if he was in control of the car and if it was being run at a greater speed than was allowed by ordinance was erroneous, because ignoring the question of defendant's orders as to speed.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Bascom Moore against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehmann, Geo. W. Easley, and Edward T. Miller, for appellant. Ernest E. Wood, for respondent.

VALLIANT, J.

Plaintiff was in the service of the defendant in the capacity of a street car conductor. On August 20, 1902, the car on which plaintiff was serving jumped the track and turned over, throwing him out and severely injuring him. The amended petition charges that the accident was caused by a "broken, worn, and defective rail" in defendant's track, of which defendant had or ought to have had notice and negligently failed to repair.

The testimony for the plaintiff tended to prove as follows: The defendant has a double-track street railroad along Grand avenue. Going south there is a curve towards the east in the tracks to conform to the curve of the street, extending from Alberta to Osage street. It is not a sharp curve, as if turning at a right angle into a cross-street, but a long curve, the precise angle of which was not shown. On August 20, 1902, the car on which plaintiff was conducter was going south. When it struck this curve it jumped the track, and after running along on the ground the length of the car or more it turned over on its side. It was a summer car with crosswise seats. The plaintiff was standing between the second and third seats from the rear, he was thrown to the ground, and part of the car fell on him and inflicted serious injuries, the details of which it is unnecessary to mention, since no point on that account is made in the brief of appellant. The rail in the track at that point was much worn—rounded, as one witness said; flattened, as another said; badly worn, as others expressed it—rendering it less capable of holding the car, and liable to cause such an accident. Several other cars had shortly before this been derailed as this was at that point. This condition had existed for two months or more, and was known for that length of time to the defendant's roadmaster, who had called the attention of some of the motormen to it and had cautioned them to be careful to run slowly through that curve. Cars could be run, using care, at a rate of 6 or 8 miles an hour, safely through the curve, and the plaintiff had for...