Sanitary Dairy Co. v. St. Louis Transit Co.

• Decision Date: 20 January 1903
• Citation: 71 S.W. 726,98 Mo. App. 20
• Parties: SANITARY DAIRY CO. OF MISSOURI v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

71 S.W. 726

98 Mo. App. 20

SANITARY DAIRY CO. OF MISSOURI v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

January 20, 1903.

STREET RAILWAY—NEGLIGENCE—CROSSING TRACK—ORDINARY CARE—INSTRUCTIONS —EVIDENCE.

1. In an action against a street railway company for damages resulting from a collision of a car with a team crossing the track, an instruction in general terms that, if the driver was exercising ordinary care, the verdict should be for plaintiff, without specifically stating the care the driver was bound to exercise, was error.

2. Where, in another instruction, the court specifically stated the care the driver was bound to exercise, the error in the first instruction was cured.

3. Where, in an action against a street railway company for damages from a collision of a car with a team crossing the track, the driver testified that as he approached the crossing he looked to see if a car was approaching, but his view was obstructed by a standing car, and as it moved away he looked again, but did not see the approaching car, and could not hear it because of the noise made by the departing car and by his wagon, and other witnesses testified that, had he looked, he could have seen the approaching car, the question as to whether he looked when he should was for the jury.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by the Sanitary Dairy Company of Missouri against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Defendant has a double street railway track on Easton avenue, running east and west, in the city of St. Louis. Easton avenue is crossed at right angles by Euclid avenue, running north and south. On December 6, 1900, plaintiff's teamster was driving plaintiff's three-horse wagon south on Euclid avenue, the driver being seated on the wagon. When he reached Easton avenue, he turned the lead horse in a southeasterly direction for the purpose of crossing to the south side of Easton avenue, and then proceeding east thereon. When his lead horse reached the south railway track on Easton avenue, it was struck by a car traveling east, and the horse and his harness were badly damaged. The suit is to recover this damage. The defense was contributory negligence. On the part of plaintiff the evidence tends to prove that as soon as the driver cleared the building line on Easton avenue he looked and listened for a car on the south track, but neither saw nor heard one; that his vision was partially obstructed by a west-bound car that had stopped on the northwest corner at the intersection of Euclid and Easton avenues for the purpose of discharging passengers, and that the noise of his wagon and the west-bound car interfered with his hearing; not seeing or hearing a car on the south track, he proceeded to cross the street in a southeasterly direction; that the car traveling east on the south track gave no warning signal as it approached the crossing, and was running at a high and dangerous rate of speed,—a speed of from 18 to 20 miles an hour. On the part of defendant the evidence tended to prove that the car was running on a downgrade at a moderate speed, with the power shut off; that the gong was continuously sounded as the crossing was approached; that the night was dark and rainy, but the car was brilliantly lighted; that Easton avenue is 60 feet wide, and that the space between the building lines is 80 feet; that the driver could have seen the car, after he entered the avenue and passed beyond the obstruction caused by the standing car, before his lead horse had reached the south track, if he had looked. For the plaintiff the court gave the following instructions: "If the jury find and believe from the evidence that on December 6, 1900, the defendants were operating a street railway by means of electricity along Easton avenue, in the city of St. Louis, and were running their cars along said avenue in charge of a motorman and conductor; and if the jury further find and believe from the evidence that on said date plaintiff's wagon was being driven by plaintiff's driver southwardly along Euclid avenue, and was proceeding to cross Easton avenue from the north side thereof toward the south side thereof, at its intersection with Euclid avenue; and if the jury further find and believe from the evidence that while plaintiff's said wagon was so proceeding to cross Easton avenue, an east-bound car in charge of defendants' servants ran into the lead horse attached to said wagon, and injured plaintiff's said horse and its harness; and...