Murphy v. St. Louis Transit Co.

• Decision Date: 24 May 1905
• Citation: 189 Mo. 42,87 S.W. 945
• Parties: MURPHY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

87 S.W. 945

189 Mo. 42.

MURPHY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

May 24, 1905.

STREET RAILROADS — PERSONAL INJURIES — COLLISION WITH VEHICLE — CONTRIBUTORY NEGLIGENCE — EVIDENCE — QUESTION FOR JURY.

In an action against a street railway company for personal injuries caused by collision between a car and plaintiff's vehicle, evidence held to justify submission to the jury of the issue of plaintiff's contributory negligence.

Appeal from St. Louis Circuit Court, Selden P. Spencer, Judge.

Action by Michael Murphy against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

A. R. Taylor and Howard Taylor, for appellant. Boyle, Priest & Lehmann, Geo. W. Easley, and Geo. T. Priest, for respondent.

VALLIANT, J.

Plaintiff sues for damages for injuries to his person, and to his horse and buggy, suffered in a collision with one of defendant's street cars.

The plaintiff's evidence tended to show the following: Defendant in July, 1901, operated a double-track street railroad in Olive street, with electricity for its motive power. The railroad had originally been constructed for cable power, and there was a slot between the rails for the passage of the grip beam. On the morning in question the plaintiff was driving in his buggy in Olive street, between Vandeventer avenue and Sarah street. His business took him to the south side of the street, where he stopped and alighted, and, when he re-entered his buggy to resume his course west, he aimed to cross to the north side of the street, and when his horse stepped into the railroad track its foot became fastened in consequence of the heel of a shoe on one of its fore feet getting caught in the slot. Just then a car of defendant's came in sight, rising over the hill at Sarah street, and coming down the grade towards Vandeventer avenue at a rate of at least 15 miles an hour. When the car came in sight it was from 400 to 500 feet distant from the buggy. The plaintiff sat in his buggy urging the horse as best he could, pulling first one rein and then another, in endeavor to get its foot free. The car came steadily on without any apparent effort on the part of the motorman to slacken its speed until it was too close to stop, and struck the buggy with such force that the plaintiff was thrown out and severely injured, and the horse and buggy were also injured. When the car was 300 feet distant the plaintiff waved his hand to the motorman as a signal to stop, but the motorman did not heed the signal. It was apparent to an onlooker that the horse was either balking or was fastened; it succeeded in getting its foot loose just before the car struck the buggy, but not in time to escape.

The evidence for the defendant tended to show that the plaintiff got in his buggy, and drove hurriedly upon the east-bound track about 25 feet in front of the oncoming eastbound car, so that it was impossible to avert the accident.

The jury returned a verdict for the plaintiff for $6,500, being $6,400 for personal injuries and $100 damages to the horse and buggy. The court sustained the defendant's motion for a new trial on the ground that it had erred in giving a certain instruction for the plaintiff, from which ruling the plaintiff appealed.

In the brief for respondent the ruling of the court is defended on three grounds: First, that there was no evidence to go to the jury, therefore the instruction asked looking to a nonsuit should have been given; second, that instruction 3 for the plaintiff was error; third, that it was error to refuse instruction 8 for defendant.

1. The first and second of the above propositions are really the same; that is, that the case should not have been given to the jury at all. Instruction 3, which is criticised, is an instruction on the measure of damages only, and the criticism is that it directs the jury, if it should find for the plaintiff, to take into account, in estimating his damages, his personal injuries. The point is thus stated in respondent's brief: "There is no doubt but that...