Nagel v. St. Louis Transit Co.

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 438,79 S.W. 502
• Parties: NAGEL v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

79 S.W. 502

104 Mo. App. 438

NAGEL v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

STREET RAILROADS—COLLISION WITH VEHICLE — VIGILANT WATCH ORDINANCE — ACCEPTANCE BY COMPANY — CONTRADICTORY INSTRUCTION—RIGHT TO ALLEGE ERROR— ABSENT WITNESS—AFFIDAVIT AS TO TESTIMONY —ADMISSION—IMPEACHMENT WITHOUT PREDICATE.

1. A vigilant watch ordinance need not be accepted by a street car company in order to bind it.

2. A party at whose request instructions are given cannot complain that they are conflicting.

3. Under Rev. St. 1899, § 687, permitting an affidavit for continuance on account of the absence of a witness to be employed in lieu of his testimony, and providing that the opposite party may prove any contradictory statements made by the witness in relation to the matter in issue, evidence of such contradictory statements is admissible though no predicate for the impeachment of the absent witness can be laid.

Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.

Action by Henry Nagel against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. W. L. Bohnenkamp and Robt. Shackleford, for respondent.

Statement.

REYBURN, J.

Action for personal injuries sustained by plaintiff, while driving a single-horse milk wagon southwardly on Broadway, from rear-end collision with south-bound car of defendant, about 150 feet north of Prairie avenue, in the city of St. Louis. The evidence revealed that about a quarter before 3 o'clock, Sunday morning, June 8, 1902, plaintiff drove from Talcott avenue, an intersecting street, upon Broadway, and proceeded southwardly on the western track of defendant's double-track electric railway. On the western side of the street, beyond the tracks, the roadway between Prairie avenue and De Soto avenue was obstructed by sewer excavations, indicated by red lights. The morning was cloudy and misting, the rails damp, and day just breaking, the street lamps being still lighted about the scene of the casualty. He had driven about a block and a half when the wagon was struck by a so-called "owl" or night car from behind, the horse killed, the vehicle wrecked, and plaintiff injured. The assignments of negligence made in the petition were that defendant's servant, the motorman in charge of the car, saw, or by the exercise of ordinary care could have seen, plaintiff and his wagon in a position of peril, and by exercise of ordinary care could have stopped the car, or sufficiently reduced the speed, in time to avoid injuring plaintiff, and that the negligent failure of such motorman to use ordinary care to discover plaintiff and his wagon in a position of peril, and after he saw him in such position, or by exercise of ordinary care would have seen him, his negligent failure to use ordinary care to slacken the speed of or stop the car, and negligent failure to discover plaintiff and sufficiently slacken the speed of such car and stop it, directly contributed to the injury to plaintiff. A further charge of negligence was made, based on the so-called "Vigilant Watch Ordinance" of the city of St. Louis, a violation of which was alleged. For its defense, defendant pleaded a general denial, with accusation of contributory negligence on plaintiff's part in going upon or near the track in front of a moving car at a time and place when and where he might have seen and heard the approaching car, but failed to look or listen for such car, and was injured in consequence. The testimony was in conflict whether the colliding car had a headlight, and whether the gong thereon was sounded until the accident was imminent. Whether plaintiff had been continuously in the track, or turned into the path of the car and thereby was struck, was also the subject of opposing testimony of various witnesses. It was shown, however, by testimony offered on behalf of defendant, that the car was moving at a rapid rate of speed, and ran about 80 feet after the impact with plaintiff's wagon.

Opinion.

1. The court is confronted at the outset with a strenuous renewal of a discussion, which was supposed to have received its obituary both from the Supreme Court, and from this tribunal in compliance with its constitutional obligation to the superior court, namely, that, before the vigilant watch ordinance of the city of St. Louis could be properly admitted in evidence, proof of the allegation that defendant had contracted with the city to accept its provisions and abide by its terms must be introduced. The point sought to be revived is not properly preserved for review in this court, for the ordinance was permitted to be offered in evidence without objection thereto; but, regarding the contention as if objection had been duly made and exception to its admission properly saved, the objection would have been unavailing. The Supreme Court, in the late case of Riska v. Union Depot Railroad Company¹ has reiterated the ruling contained in the final preceding decisions, as well as approving the last opinion of this court to the same effect, and, being not yet reported in print, the text may be quoted: "Another objection urged against this instruction is that no proof was offered that the defendant was in any manner bound by the ordinances read in evidence. The violation of these ordinances was not only admitted by defendant, but there was evidence tending to show that but for such violation the deceased would have had ample time to cross the tracks without injury. The position of defendant upon this question is that there must have been an acceptance by defendant company of this ordinance, which is generally known as the `Vigilant Watch Ordinance,' in the absence of the proof of which its...