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

• Decision Date: 05 December 1910
• Parties: SEMPLE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

133 S.W. 114

152 Mo. A. 18

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

Springfield Court of Appeals. Missouri.

December 5, 1910.

Rehearing Denied January 9, 1911.

1. TRIAL (§ 418)—RULING ON DEMURRER TO EVIDENCE—WAIVER.

A defendant who introduced testimony after the overruling of his demurrer to plaintiff's evidence thereby waived his demurrer, and his liability must be determined from all the evidence in the case.

2. STREET RAILROADS (§ 99)—COLLISIONS— CONTRIBUTORY NEGLIGENCE.

A driver of a vehicle when almost 40 feet from a street car track looked and saw no car within 200 feet of the place he intended to

cross the track. He drove towards the track at about three miles an hour, and though he knew that cars might run at 15 miles an hour, he did not look again for a car until his wagon was struck by a car. Had he looked, he could have seen the approaching car. Held, that he was guilty of contributory negligence as a matter of law.

3. STREET RAILROADS (§ 103)—COLLISIONS— NEGLIGENCE—CONTRIBUTORY NEGLIGENCE.

Where a person stepped on a street car track directly in front of an approaching car and so close that the motorman could not, with the means at hand, stop the car and prevent a collision, the company was not liable for the injuries sustained in the collision; but where one was guilty of negligence in attempting to cross a track without looking for an approaching car, and the motorman saw him in a position of peril, or by the exercise of ordinary care might have seen him, in time to have avoided the injury by the exercise of ordinary care, and failed to do so, the company was liable, notwithstanding the contributory negligence.

4. STREET RAILROADS (§ 103)—OPERATION OF CARS—CARE REQUIRED.

A motorman may presume that an adult will not undertake to cross the track in front of his approaching car, where, by the exercise of ordinary care, he may see the car approaching, and must know that if he proceeds there is danger of serious injury, and the motorman need not, under the humanitarian doctrine, stop his car merely because he sees an adult approaching the track, and some feet away, but he must make an effort to stop his car when he discovers that the adult is in a perilous position, and will not stop and let the car pass.

5. STREET RAILROADS (§ 117)—COLLISIONS— NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries in a collision with a street car, evidence of the street railway company held to require submission to the jury of the issue of the negligence of the motorman in failing to exercise proper care to stop the car after discovering plaintiff's peril.

6. NEW TRIAL (§ 77)—EVIDENCE—VERDICT— PASSION AND PREJUDICE.

Where a verdict was based on the testimony of the witnesses of the defeated party, it could not urge that the verdict was the result of passion and prejudice.

7. TRIAL (§ 91)—EVIDENCE—OBJECTIONS— TIME TO MAKE.

Where a party did not object to testimony when offered, a motion to exclude the testimony came too late.

8. DAMAGES (§ 158)—PERSONAL INJURIES— PETITION—EVIDENCE.

A petition in a personal injury action which alleges that plaintiff sustained physical injuries and was greatly frightened in consequence of the accident, so that his nervous system was seriously injured, causing headaches and sleeplessness, is sufficient to render evidence that plaintiff's mind had become weak as a result of the injuries admissible.

9. TRIAL (§§ 89, 208)—EVIDENCE—EXCLUSION FROM JURY.

Where a plaintiff suing for a personal injury offered no testimony to show that the weakened condition of his mind was due to his injuries, and defendant claimed that the condition of mind was not a natural result of the injuries, a motion to exclude the testimony as to the weakened condition of mind, or an instruction denying the right of plaintiff to recover damages therefor, was the proper practice.

10. APPEAL AND ERROR (§ 1056)—HARMLESS ERROR—ERRONEOUS EXCLUSION OF EVIDENCE.

Where plaintiff suing for injuries in a street car collision testified that he was driving on the east side of the street, that the car struck the wagon with such force as to push it across to the west side of the street, that he had not testified in his deposition that he was on the west side of the street, and defendant sought to show that plaintiff was driving in the center of the street, the exclusion of the testimony of plaintiff in his deposition as to where he was driving in the street was not reversible error.

11. STREET RAILROADS (§ 118)—COLLISIONS WITH VEHICLE—INSTRUCTIONS.

Where, in an action for injuries in a street car collision, the petition alleged that the motorman failed to keep a vigilant lookout for persons and vehicles on or approaching the track, as required by a municipal ordinance, and that had the motorman kept a vigilant watch, he would have seen plaintiff's vehicle in time to have prevented the accident, but that he negligently failed to do so, a charge authorizing a recovery on the ground that the motorman failed to stop the car within the shortest time and space practicable was proper.

12. DAMAGES (§ 216)—PERSONAL INJURIES— INSTRUCTIONS.

Where, in an action for personal injuries, plaintiff testified that he was unable to work for six weeks, that he hired a third person to take his place during that period and paid him a dollar a day and his meals, a charge authorizing the jury to award as damages the amount and value of time, if any, lost to plaintiff was not erroneous; for the amount paid by plaintiff might be considered a loss of time.

13. TRIAL (§ 260)—INSTRUCTIONS—REPETITION.

Where a plaintiff suing for an injury in a street car collision denied stating, within a few minutes after the accident, that he was not hurt, and the court gave a general charge on the credibility of witnesses, the refusal to charge that if plaintiff knowingly made a statement against his interest the law presumed the statement to be true was proper.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by Leo J. Semple against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

Glendy B. Arnold (Boyle & Priest, of counsel), for appellant. Sterling P. Bond, for respondent.

GRAY, J.

This is a suit to recover damages for personal injuries. The plaintiff alleges in his petition that on the 17th day of September, 1907, at the intersection of defendant's tracks and Walton avenue, a public street in the city of St. Louis, he was injured in a collision between a wagon he was driving and a west-bound car of defendant.

As the defendant challenges the sufficiency of the petition to authorize certain instructions, it is proper to copy the following therefrom: "Plaintiff states that the defendant's motorman in charge of said car negligently and carelessly failed to comply with the vigilant watch ordinance of the city of St. Louis, Mo., which provides that the motorman and servants of the defendant in charge of said street car shall keep a vigilant watch for all vehicles and persons either on or approaching its street car track, and, on the first appearance of danger to such persons or vehicles, stop its car in the shortest time and space possible; that had the defendant's motorman in charge of its said car kept a vigilant watch, as provided by said ordinance, he saw or could have discovered the vehicle in which plaintiff was, in time to have checked and stopped said car in the shortest time and space practicable, with the means and appliances at hand and with safety to said car and its passengers, and thus prevented striking said vehicle and injuring plaintiff; but he negligently and carelessly failed to do so, thereby directly contributing to plaintiff's injuries. That by reason of the defendant's motorman so running and operating said car and violating the said ordinance, he negligently and carelessly ran said car into the vehicle in which plaintiff was riding, thereby causing and directly contributing to the plaintiff's injuries as hereinafter alleged."

The answer was a general denial and the further defense that plaintiff's injuries, if any, were caused by his own carelessness and negligence. There was a trial by jury in October, 1909, resulting in a verdict and judgment in favor of the plaintiff in the sum of $1,500, from which the defendant appealed.

It is defendant's first contention that the court erred in refusing to direct a verdict for the defendant. The defendant offered a demurrer at the close of the plaintiff's case, but the same was overruled and the defendant then offered testimony. In so doing, the defendant waived the first demurrer, and its liability is now to be determined from all the evidence in the case. Fry v. Railroad, 200 Mo. 377, 98 S. W. 566, 8 L. R. A. (N. S.) 1069.

Walton avenue runs north and south in the city of St. Louis. The defendant at the time complained of, and for a long time prior thereto, maintained a double track street railroad, operated by electricity. The railroad approached Walton avenue, running from the southeast to the northwest until it reached the east side of Walton avenue, and then turned and the line of the road was almost due west from that point. The cars running east used the south track, and the cars running west, the north track. The plaintiff, about 6:30 in the morning, and at a time when it was daylight, was driving a milk wagon north, near the center but on the east side of Walton avenue. According to his testimony, he could not see cars approaching Walton avenue until he had reached a point about 30 feet from the south side of the tracks, and that when he got to that point, he could see down the track east about 200 feet, and to the west about 100 feet; that he was driving about three miles an hour, and as he approached the point where he could see the cars, he looked and listened and started to drive across the track. He also admitted that after he looked to the east from the point 30 feet south of the...