Nahorski v. St. Louis Electric Terminal Rys. Co.

• Decision Date: 13 April 1925
• Docket Number: No. 24641.,24641.
• Parties: NAHORSKI v. ST. LOUIS ELECTRIC TERMINAL RYS. CO.
• Court: Missouri Supreme Court

271 S.W. 749

NAHORSKI v. ST. LOUIS ELECTRIC TERMINAL RYS. CO.

No. 24641.

Supreme Court of Missouri, Division No. 1.

April 13, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by John Nahorski against the St. Louis Electric Terminal Railways Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Earl M. Pirkey, of St. Louis, for appellant.

Burton & Hamilton, of Peoria, Ill., and Anderson, Gilbert & Wolfort, of St. Louis, for respondent.

GRAVES, J.

Plaintiff is the husband of Eugenia Nahorski. His action is to recover his damages by reason of the wife being injured in a collision between an electric car, owned and run by defendant, and a motor truck, in which plaintiff and his wife and others were riding. Neither plaintiff nor his wife had anything to do with the running of the truck. They neither owned nor operated the truck, but at most were simple invitees, and passengers, along with others. The truck was owned by a Mr. Pepper, and was being driven at the time by William Stankicwicz. He was using the truck for Mr. and Mrs. Katowski. Mrs. Katowski and plaintiff's wife were sitting in the cab of the truck with the driver. In the collision, Mrs. Nahorski, wife of plaintiff, was thrown to the street and injured. Plaintiff and Katowski were in the rear portion of the truck.

The petition pleads the vigilant watch ordinance of the city of St. Louis, in which city the accident occurred. It also pleads the speed ordinance of such city. The petition is quite long but what may be termed the causal negligence, is thus stated:

"That said injuries of said Eugenia Nahorski were directly caused by the said negligence of defendant's motorman in, as aforesaid, negligently failing to sound the gong of said street car or to give warning of its approach before it, as aforesaid, struck said automobile and in, as aforesaid, negligently failing at the time said automobile was struck, as aforesaid, and for some time next prior thereto to keep a vigilant watch ahead for vehicles on or moving towards said track on which said street car was running, and in, as aforesaid, negligently failing to stop said street car before it struck said automobile, or check the speed of said street car sufficiently to prevent it from striking said automobile, when he knew or by the exercise of ordinary care would have known that said automobile was in imminent danger of being struck by said street car and said Eugenia Nahorski injured thereby, and that neither said Eugenia Nahorski nor the driver of said automobile could extricate said Eugenia Nahorski from said situation without said automobile being struck by said car, and said Eugenia Nahorski injured thereby, and that she and said driver were oblivious to danger from said street car in time by the exercise of ordinary care to have with the means at his command and consent with the safety of the persons on said street car stopped said street car before it struck said automobile, as aforesaid, or checked the speed of said street car sufficiently to have prevented it from striking said automobile, and in, as aforesaid, negligently running said car on said track on said Twelfth street at and for some time next prior to the time it as aforesaid struck said automobile at a negligent and high rate of speed and in excess of 10 miles per hour and in, as aforesaid, negligently causing and permitting said street car to, as aforesaid,. strike said automobile."

The answer was a general denial. Upon a trial before a jury, the defendant had a verdict, and from a judgment upon such verdict, the plaintiff has appealed. The amount claimed in the petition ($20,000) fixes our jurisdiction. The evidence will be noted in connection with the contentions made.

I. We need not mince words as to the facts of this case. There is a clear conflict in the evidence upon all material features. One side or the other in this contest were plain prevaricators, and the jury has deter mined that issue in favor of the witnesses for the defendant. Plaintiff's witnesses claim that the truck was on the track of the railroad, and was struck by defendant's car. Defendant's witnesses, most of whom were passengers on defendant's car said that truck approached the railway car at high speed, and ran into the car just back of the cab. Plaintiff's witnesses placed the speed of the railway car at as high as 30 or more miles per hour, while those for the defendant tended to show no excess of ordinance speed. Plaintiff's witnesses place the speed of the truck as low as 3 to 4 miles per hour, while those of defendant placed such speed at from 15 to 30 miles per hour. The only railroad employee testifying was the motorman, and his testimony is corroborated by a number of passengers on the car. He says the truck struck his car some 2 feet back of the cab in which he was riding, and fixed his speed at 10 miles per hour between streets, and at a less rate as he approached and crossed streets. According to the evidence the driver and occupants saw the railway car long before it reached the crossing. To this fact they testify.

For the plaintiff, the case went to the jury on (1) excessive speed (speed in excess of the ordinance rate of 10 miles per hour), (2) the humanitarian doctrine, including failure to stop and to warn plaintiff, and (3) the vigilant watch ordinance. The verdict of the jury settles all these questions against the plaintiff, and we think rightfully. This leaves for considerations the errors, if any, committed in the course of the trial.

II. The court gave but two instructions for. the defendant, and of these the plaintiff complains of only one, i. e. instruction No. 7, which reads:

"The court instructs the jury that there is no evidence that a failure to sound the gong or in any manner give warning of the approach of the street car in any way caused or Contributed to plaintiff's injury and on that issue...