Olsen v. Citizens' Ry. Co.

Decision Date28 November 1899
PartiesOLSEN v. CITIZENS' RY. CO.
CourtMissouri Supreme Court

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by Louisa Olsen against the Citizens' Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff was a passenger on one of defendant's cars on its street railway on Morgan street, in the city of St. Louis, and was injured by a collision between said car and a wagon of the fire department of said city on its way to a fire. No claim is made that the damages she recovered are excessive. The evidence, in brief, was to the effect that, as the car on which plaintiff was riding was moving east on Morgan street, an engine of the fire department was going north to a fire on Ninth street. The engine passed Morgan street safely, and was followed by a hook and ladder wagon, which was being driven very rapidly, as is usual with such wagons going to a fire. As this wagon proceeded North on Ninth street the gong on it was sounded constantly, and the evidence for plaintiff tended to show very strongly that it could be heard several blocks, and was heard by plaintiff, sitting in the car, when at or near Tenth street. There was also much evidence that the people in the street and on the sidewalks screamed at the motorman, and made gestures and signs to stop, whereas defendant's evidence tended to prove that the gong was not sounded, and the people did not halloo to the motorman. He did not stop, and when he saw the wagon approaching he undertook to avoid a collision by running his car at full speed across the intersection of the streets ahead of the approaching wagon; and the driver of the wagon, seeing the car, undertook to swing around its rear to the west, but failed, and the pole of his wagon struck the car in which plaintiff was seated, about three feet from the rear, crushed through the sides of the car, and struck plaintiff as she sat on her seat, and seriously injured her. The pole of the wagon broke off, and one of the horses fell down. Defendant insisted that it was the fault of the teamster on the hook and ladder wagon which caused the collision. It complains of the instructions given and refused, and the examination of these will determine the merits of this appeal.

Smith P. Galt, for appellant. A. R. Taylor, for respondent.

GANTT, P. J. (after stating the facts).

The following instruction is challenged as serious error: "(1) The court instructs the jury that the defendant, by its servants in charge of its cars, in one of which the plaintiff was a passenger, was bound, in law, to exercise a high degree of care, as defined in the instructions, to watch and listen for any approaching vehicle at the crossing of Ninth street, where defendant's car crossed such street, and was bound, also, to use such care to avoid collision with any such vehicle. And if the defendant's servants in charge of the said cars failed, even in a slight degree, to use such care, and thereby directly contributed to cause plaintiff's injury, then defendant is liable, although the jury should find from the evidence that the employés of the city fire department also failed to exercise ordinary care, and thereby contributed to cause said collision." Under the facts developed before the jury, it was clearly a question for the jury to determine whether the motorman of defendant was negligent. If he heard the gong or the shouts of the people warning him of the approach of the fire department's wagon, the most ordinary care would have dictated to him to approach the crossing...

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