Noll v. St. Louis Transit Co.

• Decision Date: 31 March 1903
• Citation: 100 Mo. App. 367,73 S.W. 907
• Parties: NOLL v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

73 S.W. 907

100 Mo. App. 367

NOLL v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

STREET RAILWAYS — COLLISION WITH TEAM DRIVING ON TRACK — CONTRIBUTORY NEGLIGENCE — INSTRUCTION — DAMAGES.

1. The driver of a team which was struck by a street car from behind is not necessarily guilty of contributory negligence in driving along the car track, without looking back, where no warning was given, as should have been, if he was, or could by the use of ordinary care have been, seen, or if it was too dark to see him.

2. Failure of an instruction in an action for injury to several articles to limit the award for each article to the amount claimed therefor in the petition is harmless, the proof being that the damages were less than alleged, and the verdict being for a third the sum prayed for.

Appeal from St. Louis Circuit Court; S. P. Spencer, Judge.

Action by Emil Noll against the St. Louis Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Boyle, Priest & Lehman and Jones & Jones & Hocker, for appellant. Geo. W. Lubke, Jr., for respondent.

Statement of Facts and Opinion.

GOODE, J.

While plaintiff was driving eastwardly on Arsenal street, in the city of St. Louis, in a one-horse covered wagon, used for delivery purposes, a car in charge of defendant's servants ran into the wagon from the rear, smashed it, injured plaintiff's horse, harness, his clothes, and himself. This action was brought to recover damages for the injuries.

The acts of negligence charged are that the motorman did not warn plaintiff of the approach of the car by sounding the gong, failed to keep a vigilant lookout for vehicles and persons on the track, and ran the car too rapidly. The vigilant watch ordinance is pleaded, and a violation alleged in respect to watching for persons on the track. Besides a general denial, the answer alleges contributory negligence on the part of plaintiff in driving in front of the car, when, by looking, he might have seen, and, by listening, might have heard, the approach of the car, and avoided the accident.

Plaintiff's testimony is that at 5:30 or 6 o'clock in the morning of November 23, 1901, he drove on Arsenal street in his delivery wagon from Morgan Ford Road, and, after looking along Arsenal street both east and west, to see if a car was coming, and, seeing none, he turned east on said street; that he drove on the car track because it was muddy on both sides of the street, and driving was easier on the track. After driving about three blocks, and when he was near Russell Place, he suddenly heard the rumble of a car behind him, whipped up his horse, turned to the left, and got the horse and left front wheel of the wagon off the track when the car struck it, overturning the wagon, throwing him to the ground, and pushing him about 20 feet. We need not state the extent of his injuries, as no point is made about the amount of the verdict.

There is a marked dispute between the witnesses as to whether the morning was clear or foggy, and as to whether at that particular time it was so dark as to prevent one from seeing far ahead, or light enough to see quite a distance. Plaintiff testified that it was a fairly clear morning, so that one could see both ways from Morgan Ford Road about half a mile. He said there was no fog. That he did not know whether he looked back or not after he got on the track. He kept on until he was within 15 feet of Russell Place. Did not know whether he looked back or not, but something told him a car was near. Henry A. Lowenstein testified that he was a passenger on the car. Got on at Bent avenue. That, while waiting for the car to come along, he saw a white horse and a covered wagon driving on the track. That the car came about five minutes after the vehicle passed. That it was a very dark morning. Could not say whether he heard the bell ringing or not, but remembered hearing it after the accident. Did not notice any slackening of the speed of the car before the wagon was struck. Did not know how fast it was going, for it was dark; but saw the car a long block away before he got on it, as it had a headlight. Testified that he could not see the wagon very far — not until he got opposite the next lamp post. Michael Koebel testified he was a passenger on the car, and the first he knew of the occurrence was when the car struck the wagon. He heard no bell, and observed no slackening of the car until the wagon was struck. Could not say how far the car ran after striking the wagon. Michael Queenan testified he was a passenger on the car, but swore he could not see out of the car because it was so dark. That when the car struck the wagon the motorman reversed the car as quickly as he could, and there was a flash like a fuse had burned out. That he did not hear the bell, but he was not paying any attention to the motorman or whether the bell was rung. Henry Browning the motorman, testified that it was a very dark, foggy morning. He was running at half speed — about six or eight miles an hour. The headlight was burning, but would only throw its light 15 feet or so ahead, as it is more difficult for the rays of a headlight to penetrate the fog than ordinary darkness. He first saw the wagon when it was about 15 feet distant. Reversed the car, struck the wagon, and ran a car length afterwards. That he was looking ahead at the time, and the first he saw of the wagon he was 15 feet from...