Septowsky v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Parties: SEPTOWSKY v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

76 S.W. 693

102 Mo. App. 110

SEPTOWSKY v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

STREET RAILROADS—NEGLIGENCE—CONTRIBUTORY NEGLIGENCE—VIOLATION OF ORDINANCE — BUILDING ORDINANCE — PROOF OF ACCEPTANCE—PLEADINGS IN JUSTICE COURT —INSTRUCTIONS.

1. Rev. St. 1899, § 3852, enacts that no form of pleadings on the part of either plaintiff or defendant shall be required in a justice court, but that, before process issues, plaintiff shall file a statement of the cause of action. In an action instituted in justice court, the complaint was divided into two counts, each of which set up the same cause of action, but the whole complaint stated a cause of action which was sufficient to bar another suit on the same cause after judgment. Held that, under the statute, the complaint was sufficient, and it was proper to deny a motion that plaintiff elect on which count he would rely, and to overrule an objection to the reception of evidence on the second count on the ground that it was identical with the first.

2. In an action against a street railway, it is not necessary that an ordinance requiring operatives of cars to keep a vigilant watch for vehicles, etc., should be specially pleaded, and proof made of its acceptance, before reading it in evidence.

3. Though one negligently places himself in a perilous position by driving on or near a street railway track, a motorman owes him the duty of trying to avoid accident, and the person's negligence does not bar recovery if injury results from negligence of the motorman.

4. A party cannot complain on an appeal of the giving of an instruction which contained the same error as an instruction requested by him and refused.

5. Where, in an action against a street railway for injuries, the negligence of plaintiff was conceded by his own instructions, and his right to recover based on the last-chance rule, a requested instruction to the effect that both plaintiff and defendant were guilty of negligence, and that plaintiff could not recover, was properly refused.

6. Where a party to a case has made admissions against his interest, it is proper to instruct that the jury are the sole judges of plaintiff's credibility, and that all statements made by him against interest must be taken as true, but that his statements in his own favor are only to receive such credit as the jury deem them entitled to.

7. Where, in an action against a street railway for injuries, plaintiff's only admission against his interest was that before attempting to cross the street he did not look for an approaching car until it was so near on him that he could not avoid a collision, and the court instructed that on this evidence, as a matter of law, plaintiff was guilty of negligence, refusal of an instruction that the jury were the sole judges of plaintiff's credibility, and that all statements made by him against interest must be taken as true, was not prejudicial to defendant.

8. Where, in an action against a street railway company for injuries, the evidence shows that the motorman, by due diligence, could have seen plaintiff 70 feet from the place of the collision, and in time to have avoided the accident, and that he made no reasonable effort to avoid it, the jury could not have been misled by an instruction which, in stating defendant's duty, erroneously incorporated the hyperbolical phrase of an ordinance, "to stop the car in the shortest time and space possible."

9. In an action against a street railway for injuries, plaintiff admitted his own negligence in driving on the track without looking or listening for the car, and the court instructed that, as a matter of law, he was negligent; and the evidence of the motorman showed that he exercised that degree of care and skill that the law imposed on him. Held, that inasmuch as one of the controlling issues was whether the negligence of plaintiff directly contributed to the injury, so as to preclude recovery, it was error to refuse to instruct that if plaintiff and the operatives of a car were negligent, and plaintiff's negligence directly contributed to the accident, the jury should find for defendant.

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

Action by Frank J. Septowsky against the St. Louis Transit Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The suit was instituted in a justice of the peace court in the city of St. Louis, by filing therein a complaint in two counts. After formal allegations, the first count states "that on October 4, 1901, while plaintiff was driving his wagon, containing groceries, north on Thirteenth street, in the city of St. Louis, it was struck by a west-bound car on Wash street; that, as he got into Wash street, one of defendant's cars came westwardly on Wash street, from a point east of said Thirteenth street; and, owing to the failure of the motorman thereof to ring his bell, plaintiff had no notice of its approach, and, after becoming aware of its approach, was unable to get out of the way of said car. Plaintiff states that said car came along said Wash street at a high rate of speed, and gave no sound of warning as it approached Thirteenth street, so that he drove on Wash street without any knowledge of the approach of said car. Plaintiff states that defendant's motorman in charge of said car violated the ordinance above set out [the vigilant watch ordinance, pleaded in extenso], by failing to keep a vigilant watch for vehicles, and by failing to stop his said car in the shortest time and space possible after discovering plaintiff in a position of danger, and was therefore guilty of carelessness and negligence, as a result of which his horse, wagon, and contents of wagon, were injured, to his damage in the sum of $200, for which he prays judgment." The second count is a substantial repetition of the first, except it alleges personal injuries to the plaintiff, and prays judgment for $300 on account thereof. After trial and judgment in the justice's court, the cause was appealed to the circuit court, where, on a trial anew, the jury rendered a verdict for the plaintiff, and assessed his damages at $125 on the first count, and at $300 on the second. Timely motions for new trial and in arrest of judgment were filed, both of which the court overruled. Defendant then appealed.

Boyle, Priest & Lehmann, for appellant. J. Hugo Grimm, for respondent.

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

1. The evidence is that Wash street, in the city of St. Louis, runs east and west, and is 48 feet wide, with a single street railway track laid in its center, over which defendant operates street cars from east to west, propelled by electric power; that Thirteenth street is 60 feet wide, runs north and south, and crosses Wash street between High and Fourteenth streets; that Wash street, east of Thirteenth, is built up for several blocks even with the building line; that Wash street is straight and comparatively level east of Thirteenth for 10 or 12 blocks. On plaintiff's behalf the evidence tends to prove that on October 1, 1901, about 3:30 p. m., plaintiff was driving a blind horse harnessed to a one-horse spring wagon north on Thirteenth street; that when he reached the crossing of Wash street he heard no bell, and did not look east for a car until his horse was within a few feet of the south rail of the track, when he saw a car coming from the east close upon him; that he then turned his horse west to avoid a collision, but was not quick enough, and the car struck the wheel of the wagon and overturned it, throwing plaintiff out; that the damage to the wagon was $22, to its contents (eggs and glassware) about $14, and to the horse about $25 or $30; that plaintiff's head was cut, and he was otherwise bruised and injured, suffered pain, and was laid up for a considerable length of time, and was unable to attend to his business. In the wagon with plaintiff was Ben Lewandowski, who, in respect to the accident, testified as follows: "As we were going north on Thirteenth street, with the intention of going to Biddle street, we got close to Wash street, when Mr. Septowsky noticed a car coming, and we were both about—well, I don't know exactly how many feet away from the track—and all of a sudden Septowsky turned the horse around and switched off on the left-hand side, on the south side of the street. Just then, by switching around, the car hit the wheel and the horse, and knocked the horse down and shoved the wagon up—pushed it up quite a piece—and Mr. Steptowsky was thrown out, and I was thrown out, and I lit on my feet. I was thrown out of the wagon, but I lit on my feet." The evidence further tends to show that plaintiff was driving along in a jogging trot, without looking or listening for a car, and that he did not see the car until it was so close upon him that he could not avoid the collision. The evidence also tends to show, on the part of plaintiff, that no warning signal was given as the car approached the crossing of Thirteenth street; that the motorman saw, or could have seen, the plaintiff, if he had looked, at least 70 feet from the crossing; that a car running at ordinary speed could be stopped within from 70 to 80 feet, but that the motorman made no effort to stop the car or check its speed until after the wagon was struck, and that he did not then stop it until it had run about one hundred and fifty feet. On the part of the defendant, the evidence tends to show that the warning signal was given as the car approached the crossing of Thirteenth street; that the motorman saw the plaintiff when the car was about 50 feet from the crossing, and that he made every effort in his power to stop it, but, on account of the nearness of the wagon, was unable to do so in time to avoid the collision. For the plaintiff, the court instructed the jury as follows: "(1) Gentlemen of the Jury: The plaintiff in this case did not, under the evidence, exercise...