Prendeville v. St. Louis Transit Co.

• Decision Date: 07 January 1908
• Citation: 107 S.W. 453,128 Mo. App. 596
• Parties: PRENDEVILLE v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

107 S.W. 453

128 Mo. App. 596

PRENDEVILLE v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

January 7, 1908.

Rehearing Denied February 4, 1908.

1. TRIAL — INSTRUCTIONS — INCONSISTENT INSTRUCTIONS.

In an action for injuries received by colliding with a street car while driving on defendant's track, an instruction based on the theory that even if plaintiff was not exercising ordinary care at the time of the accident, if the motorman saw, or should have seen, plaintiff's dangerous position, and thereafter negligently failed to take steps to prevent a collision, defendant was liable, was not erroneous as being inconsistent with a previous instruction framed on the theory that plaintiff could recover, if he was using ordinary care, and if the motorman saw, or should have seen, him on the track, and thereafter negligently failed to use proper appliances to prevent a collision.

2. STREET RAILROADS — INJURIES — INSTRUCTIONS — MOTORMAN'S DUTY.

In an action for injuries received by the collision of plaintiff's wagon with a street car while driving on defendant's tracks, an instruction that plaintiff could recover if the motorman saw, or should have seen, his wagon on the track, and thereafter could have prevented the collision by taking proper steps to stop the car, but negligently failed to do so, was not erroneous as imposing on the motorman the duty of stopping the car upon seeing the wagon on the track, instead of after he realized the danger of a collision.

3. SAME — COLLISION WITH VEHICLES — MOTORMAN'S DUTY.

While a motorman need not stop or slow up his car on seeing a vehicle on the track, however distant, it is his duty to do so in time to prevent a collision.

4. DAMAGES — EVIDENCE — PERMANENT INJURIES — SUFFICIENCY.

In an action to recover for injuries received by plaintiff in a collision with defendant's street car, evidence examined, and held insufficient to warrant a finding by the jury that plaintiff was permanently injured.

5. TRIAL — INSTRUCTIONS — CONFORMITY TO EVIDENCE.

In an action for injuries received in a collision with a street car, where there was no evidence that plaintiff's injuries were permanent, the submission of an instruction permitting recovery for permanent injuries resulting directly from the accident was erroneous.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Jeremiah Prendeville against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff alleges that on or about August 30, 1904, while he was driving a wagon along a street car track owned and used by the defendant company on Jefferson avenue, in the city of St. Louis, one of defendant's cars then operated by defendant's servants at an excessive and careless rate of speed was negligently caused by said servants to collide with and run into plaintiff's wagon, when by keeping a careful lookout, and using the appliances on said car for checking its speed and stopping it, said servants could have prevented the collision. Plaintiff, a butcher, was driving south along Jefferson avenue about 10 minutes before 4 o'clock in the morning of August 30, 1904. He was in a wagon that had a top over it, but was open at the sides and ends. The wagon contained meat which plaintiff was taking to his shop or his customers. He was driving along the west or south-bound track. The weather was clear, and there were gaslights along the street. Plaintiff had entered Jefferson avenue at Sullivan avenue, and had looked back several times while proceeding along Jefferson; but neither heard nor saw a car. Just before the collision, he looked to the rear of his wagon, and a car was nearly on him. He then tried to pull out of the track, but before he did so the collision occurred, and he was knocked unconscious. His injuries, which were severe, confined him to the hospital 41 days, and kept him at home 3 or 4 months, after which period he was able to go about on crutches. After entering Jefferson avenue, plaintiff had driven 8 or 10 blocks before the accident occurred. He could not tell how many times he looked for a car, but knew he did several times, and swore he had a habit of looking back when he was driving on a car track. He testified he could see ahead of him for half a block. The conductor of the car, who was subsequently discharged from service by the defendant company for an alleged delinquency, testified there were gaslights along the street, and a good headlight on the car, which shed a very fine light for about a block or three-fourths of a block ahead; and, further, that the light would show an object on the track 200 or 300 feet in advance of the car. The conductor testified, further, that the car was proceeding at the rate of 20 or 25 miles an hour at the time of the collision, and, when the wagon was struck, it was knocked over on the sidewalk with plaintiff underneath; the car proceeding about two lengths further. The only passenger who was on the car swore the headlight was a very bright one, and extended along the street about two blocks, and that the car was traveling 20 or 25 miles an hour before the collision, and had not slowed down; that it ran from 100 to 165 feet after striking the wagon. Certain ordinances were introduced which gave vehicles the right to use a car track when driving in the direction traveled by the car. At the conclusion of plaintiff's testimony, the defendant requested an instruction that, under the pleadings and evidence, plaintiff could not recover, which instruction was refused and the case submitted to the jury on other instructions, of which complaint is made, as it is also of the refusal of the court to grant some instructions asked by defendant. No testimony was introduced by defendant, and the case, as it was presented, is substantially set forth in the foregoing statement. One of the assignments of error is that the jury were told in an instruction given at plaintiff's...