Murray v. St. Louis Transit Company

• Decision Date: 20 June 1903
• Citation: 75 S.W. 611,176 Mo. 183
• Parties: MURRAY v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

75 S.W. 611

176 Mo. 183

MURRAY v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, First Division

June 20, 1903

Appeal from St. Louis City Circuit Court.-- Hon. Selden P. Spencer Judge.

Reversed and remanded.

Boyle Priest & Lehmann, Walter H. Saunders and Lon.O. Hocker for appellant.

(1)The court erred in submitting to the jury, in the instructions given of its own motion, the question of defendant's liability in failing to sound its gong, as there was no legal evidence of such failure.The only interpretation which can be placed upon the testimony respecting the gong, given by all of plaintiff's witnesses, is that they were not paying any attention to it.Such testimony does not make out a case of negligence, the presumption being that the defendant exercised proper care.Cathcart v Railroad,19 Mo.App. 118;Summerville v. Railroad,29 Mo.App. 48.(2)The court erred in refusing defendant's instructions 2 and 3, which stated to the jury the plaintiff's obligation to look and listen, and in giving one of its own motion, exacting of him only ordinary care generally.Zimmermann v. Railroad, 71 Mo. 490.

George E. Smith for respondent.

OPINION

VALLIANT, J.

Plaintiff recovered a judgment for $ 500 damages for personal injuries received by him in a collision with one of defendant's street cars, caused, as he alleges, by the negligence of defendant's servants.Defendant appeals from the judgment, and as the appeal was taken before this court had passed on the question of the validity of the constitutional amendment authorizing nine jurors in a civil case to return a verdict, and as that question was raised in the trial court in this case, the appeal was brought to this court.Since the appeal in this case was taken, however, that constitutional question has been decided by this court and it is no longer in doubt.[Gabbert v. Railroad, 171 Mo. 84.]

The petition charges the following acts of negligence:

The servants in charge of the car were inexperienced and unskillful;

They were running the car at an unlawful and reckless speed;

The motorman in charge saw the plaintiff crossing the track in ample time to have averted the accident but neglected to do so;

The motorman neglected to ring his gong.

The answer was a general denial, and a plea that plaintiff was guilty of negligence contributing to the accident in that he drove on defendant's track without looking or listening and in such close proximity to the moving car as to prevent those in charge of it from stopping in time to prevent the collision.

The plaintiff's evidence tended to prove as follows:

Montgomery street runs east and west crossing Ninth street at right angles.In the afternoon of August 17, 1900, plaintiff, a man fifty-nine years of age, was driving a one-horse wagon going west on Montgomery street.It was a covered wagon with curtains at the sides, but the curtains were rolled up and the driver could see to the front and on both sides.Defendant owns a single track street railroad on Ninth street, the cars over which pass only in one direction, north.As the plaintiff, driving, approached defendant's tracks when his horse's head was six or seven feet east of the east rail he looked to the south and saw a car approaching about half a block distant, and judging that he would have sufficient time to cross, drove on slowly, but before he got across the car struck the wagon, overturned it, and threw him out, inflicting injuries.Neither the plaintiff nor any of his witnesses heard a gong ring.

The defendant's evidence tended to prove as follows:

When the car going north had passed about fifty feet north of Warren street, which is the next street south of Montgomery, its movement was impeded by a large furniture wagon on the track going slowly in the same direction.The motorman rang his bell to signal the driver of the furniture wagon to get off the track and when that wagon was about twenty feet from the south line of Montgomery street it moved off the track to the right; the car was then about fifteen feet behind it or about thirty-five feet from the south line of Montgomery street.The motorman did not see the plaintiff's wagon until the furniture wagon had cleared the track; then the plaintiff's wagon was within ten feet of the track.As soon as the motorman saw the plaintiff's wagon he applied his brake, reversed his motor and tried to stop the car, but it was too late.The car struck the wagon and turned it over but did not injure it, and stopped in the intersection of the two streets, three or four feet south of the north line of Montgomery street.

The court of its own motion gave the jury the following instruction:

"If from the evidence you find and believe that on August 17 1900, the plaintiff was thrown out of the wagon which he was driving and was injured by reason of one of defendant's cars striking said wagon at a public crossing in this city, and that the plaintiff in approaching the track and thereafter exercised reasonable care for his own protection and that the defendant's servants in charge of said car either ran said car at a rate of speed which was negligent on their part, as hereinafter explained, or that they negligently failed to give any warning of the approach of the car, or that they negligently failed to stop the car in time to avoid the accident after they saw the plaintiff crossing the track, and that one or more of such negligent acts of defendant's servants (if you believe they were negligent) was the direct and proximate cause of plaintiff's injury, then your verdict should be for the plaintiff.

"The burden of proving that the defendant was guilty of any one or more of the acts of negligence hereinabove referred to, and that such negligence was the direct and proximate cause of the plaintiff's injury, is upon the plaintiff, that is, he must establish the truth thereof by a preponderance, or greater weight, of the evidence.

"Negligence is the absence of ordinary care.Ordinary care is that degree of care which a person of ordinary prudence would under the same or similar circumstances exercise.Applying these definitions to this case, the defendant was required to use such ordinary care in regulating the rate of speed of its car, in giving warning of the approach of the car and in stopping the car after the plaintiff was seen by them to be in peril.If, on the other hand, you believe that the plaintiff failed to exercise ordinary care for his own protection, and that such failure on his part was either the direct and proximate cause of his injury, or that without such failure to exercise ordinary care on his part, the injury to himself would not have occurred even though defendant's servants were negligent as herein explained, then your verdict should be for the defendant.

"The burden of proving any such negligence on the part of the plaintiff and that such negligence contributed to the plaintiff's injury, as hereinbefore explained, is upon the defendant, that is, they must establish the truth thereof by a preponderance or greater weight of...