Niehaus v. United Rys. Co. of St. Louis

• Citation: 165 Mo. App. 606,148 S.W. 389
• Parties: NIEHAUS v. UNITED RYS. CO. OF ST. LOUIS.
• Decision Date: 04 June 1912
• Court: Court of Appeal of Missouri (US)

148 S.W. 389

165 Mo. App. 606

NIEHAUS v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals, Missouri.

June 4, 1912.

1. STREET RAILROADS (§ 117) — COLLISION WITH VEHICLE—CAUSE OF ACCIDENT—JURY QUESTION.

In an action against a street railway company for collision with a vehicle resulting in death of one of the occupants, held, under the evidence, a jury question whether the accident was due directly to excessive speed of the car.

2. EVIDENCE (§ 474) — OPINIONS—SPEED OF CAR.

In an action against a street railway company for death of an occupant of a vehicle which was struck by a street car, wherein plaintiff pleaded excessive speed of the car, a witness who had observed and ridden on cars on the particular line was properly permitted to testify that the particular car "traveled faster than they ordinarily do."

3. EVIDENCE (§ 492) — OPINION—SPEED OF CARS.

The rate of speed of moving cars may be shown by the opinion of a witness who saw the cars in motion.

4. STREET RAILROADS (§ 111) — COLLISION WITH VEHICLE—COMMON-LAW NEGLIGENCE —PROOF REQUIRED.

In an action against a street railway company for death of an occupant of a vehicle in collision with a car, wherein the petition counted on common-law negligence in running the car "at a high and dangerous rate of speed, to wit, at a speed of more than 15 miles an hour," plaintiff was not bound to show that the speed exceeded 15 miles an hour.

5. DEATH (§ 104)—DAMAGES—INSTRUCTIONS.

In an action brought by the administrator of a single woman against a street railway company for her death, caused by collision with a street car, an instruction that, if the jury found for plaintiff, they should award a verdict of not less than $2,000 and not more than $10,000 as a penalty for the unlawful act complained of—running of defendant's car at a dangerous rate of speed—was not erroneous as authorizing an award of compensatory damages.

6. TRIAL (§§ 191, 244)—INSTRUCTIONS— ASSUMPTION OF FACTS—SINGLING OUT MATTERS.

In an action against a street railway company brought by a single woman's administrator for her death in a collision with a street car charged to have been caused by running defendant's car at a dangerous rate of speed, an instruction that, if the jury found for plaintiff, they should return a verdict of not less than $2,000 and not more than $10,000 as a penalty for the unlawful act complained of, was not erroneous as assuming that defendant's negligent acts were unlawful, nor as singling out and commenting on such negligence by characterizing it as unlawful.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Edwin R. Niehaus, Annette E. Niehaus' administrator, against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff brought this suit under the second section of the damage act (section 5425 of the Revised Statutes of Missouri 1909) to recover $10,000 damages for the negligent killing of his intestate, Annette E. Niehaus. The plaintiff had verdict and judgment against the defendant for $5,000, and the defendant has appealed.

Miss Niehaus was killed in a collision between one of the defendant's street cars and a runabout in which she was riding; the collision occurring on Sunday afternoon, July 11, 1909, at the intersection of Shenandoah avenue and Lawrence street, in the city of St. Louis. Plaintiff charges that her death was caused by the negligence of defendant's motorman in charge of the street car as follows: (1) "In running said car at said time and place at a high and dangerous rate of speed, to wit, at a speed of more than 15 miles per hour;" (2) "in running said car at said time and place at a greater rate of speed than 15 miles per hour," contrary to or-ordinance, pleading such ordinance. There were two other specifications of negligence, but they need not be noticed as they were not submitted to the jury. The defendant offered no evidence. The evidence on behalf of the plaintiff discloses that Shenandoah avenue and Lawrence street are open public streets in the city of St. Louis; the former running east and west and the latter north and south. Defendant operated a double-track street railroad line on Shenandoah avenue, crossing Lawrence street at right angles. Lawrence street leads to and from a large public park, is much traveled, especially on Sunday afternoons, by people visiting the park. On a Sunday afternoon, July 11, 1909, Miss Niehaus was riding south along Lawrence street in an ordinary runabout, pulled by a small horse, driven by her adult married sister, Mrs. Ruwe. She held a baby in her lap. The runabout with its occupants approached Shenandoah avenue, the horse going at a moderate trot. For a considerable distance, some three blocks, Shenandoah avenue inclined sharply downward toward and past the point where it crossed Lawrence street. West-bound cars came down this incline. The driver in the runabout, Mrs. Ruwe, could not look eastwardly along and up this incline until she had reached about the front building line of a row of houses which fronted south on Shenandoah avenue. Then she looked, and could see eastwardly past a hedge to a point in the west-bound track 160 feet east of the center line of Lawrence street along which the runabout was traveling. She saw nothing to indicate the approach of a car, and drove on, remembering nothing more. As the horse and runabout with its occupants approached the track, a car belonging to the defendant came down the incline on the west-bound track at a "terrible" speed, which in the opinion of one witness was at the rate of 25 miles per hour. When this witness first noticed the car and its speed, it was at the third or fourth house east of the corner house, a point which we calculate from measurements on a plat introduced in evidence is from 105 to 130 feet from the point of collision. From that point the car, according to this witness, ran to the point of collision without any perceptible slackening of speed. A man who sat on the sand box by the motorman testified that the car was "coasting"—that is, running down the hill without brake or power—that he first noticed the runabout when the car was about 75 feet from the crossing, and at that time the head of the horse was about 10 feet from the track. The car ran about 125 feet beyond the point of collision before stopping. It had struck the horse and runabout about midway; that is, so as to strike about the hind part of the horse and the front part of the runabout, and had passed through, separating the horse from the runabout. When the car stopped, the horse was lying dead on the south side of the car and 10 or 15 feet back of it. The runabout was on the north side and near the front of the car, with one of its wheels broken off. The baby was caught and held on the front window of the car. Miss Niehaus was lying under the air tank on the north side of the car suffering from injuries from which she died. Mrs. Ruwe was also found on the ground badly injured. It was shown that Miss Niehaus was an adult person, and had neither husband nor child, natural born or adopted. No evidence was offered tending to show her earning capacity or expectancy of life. As some point is made on the testimony of two of the witnesses who testified as to the speed of the car, we will mention such testimony more particularly. A. W. Gohausen testified that he was 17 years of age and had lived in the city of St. Louis and been riding in street cars all his life; had ridden in the Shenandoah avenue cars up and down Shenandoah avenue. He observed the speed of this car from the sidewalk. On direct examination he was permitted to state over the objection of the defendant, in substance, that the car was running faster than cars ordinarily ran down this particular incline past Lawrence street. On cross-examination he stated that cars ordinarily traveled fast down that hill on Shenandoah avenue, and that this car traveled faster than they ordinarily did. The direct examination of George Kletzker, the man on the sand box, proceeded in part as follows: He first stated: That for two months he had been a guide for the Auto Sight Seeing Company, and that the automobiles he had ridden on in such employment usually went at the rate of 15 to 20 miles an hour. That he had lived in St. Louis all his life, and had noticed the speed of street cars and had ridden on them as well as railroad trains. "Q. Do you know enough about the speed from...