Slezak v. St. Louis Transit Co.

• Decision Date: 19 October 1909
• Citation: 121 S.W. 1095,142 Mo. App. 693
• Parties: SLEZAK v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

121 S.W. 1095

142 Mo. App. 693

SLEZAK v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

October 19, 1909.

1. STREET RAILROADS (§ 114)—INJURIES TO PERSONS ON TRACK—SUFFICIENCY OF EVIDENCE.

Evidence in an action for injury to a driver of a steam roller in being thrown therefrom by a street car colliding with it held to support a finding that the motorman could by ordinary care have avoided the collision after the danger became apparent.

2. APPEAL AND ERROR (§ 971)—DISCRETION OF LOWER COURT—OPINION EVIDENCE — QUALIFICATION OF WITNESS.

Witness testified that he had timed a street car but once, but that he was familiar with the running of cars, had frequently observed them, and that his estimate of the speed of the car in question was based on his observations. Held, that to allow him to give his estimate was not such an abuse of the court's discretion as warranted interference by the Court of Appeals.

3. DAMAGES (§ 132)—EXCESSIVE — PERSONAL INJURIES.

Plaintiff, while driving a steam roller, was thrown therefrom by a street car colliding with it. He testified that prior to his injury he was in good health; that he had operated a steam roller about eight months in a season; that he received from $3.50 to $4 a day; that since his injury he was disabled in his limbs; that he had tried to work, but, owing to his disabilities, had been unable to do anything except light work and for short periods; that he had lost wages for nearly two years; that he continued to suffer pain. A physician who treated him testified that he would never fully recover, and another physician that his injuries were permanent. He incurred a doctor's bill of $50 to $75, and a bill of $100 for medicine. Held, that a verdict of $2,000 was not excessive.

4. STREET RAILROADS (§ 118)—INJURIES TO PERSONS ON TRACK—INSTRUCTIONS.

In an action for injury to a steam roller driver thrown therefrom by collision with a street car, the court charged that if the motorman failed to keep a vigilant watch for vehicles on the track, or to exercise ordinary care to control or stop the car and avoid the collision, and plaintiff was exercising ordinary care, then he was entitled to recover. In another instruction ordinary care was defined to mean such care as a person of ordinary prudence would exercise under similar circumstances. Held, that there was no error in the use of the words "vigilant watch," taking the instruction in its entirety, and particularly when considered in connection with the instruction defining ordinary care.

5. STREET RAILROADS (§ 118)—INJURIES TO PERSONS ON TRACK—INSTRUCTIONS.

A requested charge that there was no evidence that the motorman was running the car, which collided with plaintiff's steam roller, at a high and reckless speed, and that that charge of negligence was withdrawn from the jury's consideration, was defective, and would have been confusing, in that it failed to define what would have been a high and reckless speed under the circumstances.

6. TRIAL (§ 140)—QUESTIONS OF LAW OR FACT—CREDIBILITY OF WITNESSES.

It is for the jury to determine what weight to attach to the testimony of witnesses.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Frank Slezak against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action for personal injuries resulting from a collision between a street car, operated by the defendant St. Louis Transit Company, and a steam roller, driven by plaintiff, as engineer. The petition charges common-law and ordinance negligence, and avers that on July 6, 1904, while plaintiff, then in the employ of the city of St. Louis and operating a steam roller on Twenty-Second and Morgan streets, was crossing defendant's track to the south, "defendant's servants in charge of their east-bound car on Morgan street carelessly and without using any care to control or stop said car and prevent it colliding with said steam roller, and whilst running said car at a high and reckless speed, and in disregard of warnings to stop said car, caused and suffered said car to collide with said steam roller, whereby plaintiff was thrown from said roller and caused to fall and sustain permanent injury upon his right shoulder and the muscles and tendons thereof, and also upon his right leg and the muscles and tendons thereof, and also to injure his hearing, and to bruise and lacerate his head and face." The petition also pleads what is known as the "vigilant watch" ordinance, requiring that the motormen on street cars should keep a vigilant watch for vehicles on the track or moving towards it, and that, upon the first appearance of danger to such vehicle, the car should be stopped within the shortest time and space practicable under the circumstances. It is then charged that defendant's servants at the time of the collision failed to keep such vigilant watch and failed to so stop said car, which violation of the ordinance, it is charged, directly contributed to cause plaintiff's injury. The petition further avers that by his injuries so sustained plaintiff has suffered and will suffer great pain of body and mind, has been disabled from labor, has lost and will lose the earnings of his labor, has incurred and will incur large expenses for medical and surgical attention and nursing, all to his damage in the sum of $4,499, for which sum he prays judgment. The answer is a general denial, accompanied by the averment that the plaintiff's injuries, if any sustained, were caused by his own carelessness and negligence in attempting to drive a steam roller across the track immediately in front of a moving car. The reply was a general denial. The suit was originally against the St. Louis Transit Company & United Railways Company, but on motion of plaintiff an order was entered dismissing the suit against the United Railways Company.

On a trial before the court and jury evidence was introduced tending to show the following facts: The plaintiff and other employés of the city had been engaged with the steam roller in question on the day mentioned, rolling macadam in the block north of Morgan street, between Morgan street and Franklin avenue. Having completed the work in that block, the roller, with its attending workmen, was proceeding south on Twenty-Second street to roll the macadam in the block between Morgan street and Lucas avenue. It was a bright, clear, day, and the time between 2 to 2:30 p. m. Morgan street at that time was occupied by the defendant with a single track, located about the center of the street, on which track defendant operated its street cars for the carriage of passengers east-bound on said street. It was downgrade, defendant's tracks approaching Twenty-Second street from the west, as far as two or three blocks west from Twenty-Second street. When the steam roller in charge of plaintiff, on its way south, reached Morgan street, the watchman or flagman for the city who attended the roller, and whose duty it was to watch at street crossing and see whether the way was clear for the passage of the roller over the crossing, signaled plaintiff to stop the roller to allow one of defendant's cars going east to pass. Plaintiff did stop the roller in obedience to the signal, and allowed the car to pass east. There is much discrepancy in the evidence as to the distance from the track the stop was made. Witnesses for the plaintiff located the stop at about 10 to 15 feet from the track, while the evidence for the defendant located the stop at from four to six feet from the track. After this car going east had passed the roller, the watchman, one Brady, went forward, and signaled plaintiff to move on south across the car track. Brady testified that, before doing so, he looked west, and that there was no car approaching from the west in sight; that, when he looked again, which was as the wheels of the roller were going on the track, he saw a car coming east, and that it was then in the middle of the block between Twenty-Second and Twenty-Third streets, about 200 feet away; that he immediately waived a signal for the car to stop; that the car did not stop, but ran down at a high speed, and struck the wheel of the roller and knocked it off the track, with the rear end of the roller about 18 feet from the point of collision.

The roller weighed about 17 tons. It was constructed with two wheels in the rear about 8 feet high and with a small guide-wheel in front. The machine was of iron, and about 16 feet long with rollers in front. It was reversible, and could be moved with either end in front. On the day of the accident the roller was moving south along Twenty-Second street to Morgan street, with the rear of the machine south and in front. After the signal was given to go ahead with the roller—that is, after the first car passed— the machine moved to and on to the track, with the end of the machine to which were fixed large wheels in front. The machine while moving to and on to the track moved very slowly, "about half the speed of a slow walk of a man." There was evidence for plaintiff tending to show that the rear wheels going south got on the track and about to the south rail. The plaintiff and his witnesses testify that, when the wheels of the roller were on the track and the street car then in the middle of the block, say 150 or 200 feet away, Brady, the watchman, waved his flag to stop the car, and the plaintiff and a workman on the roller both waved their hats and hands at the motorman to stop. He did not stop, but ran the car down and collided with the roller knocking the roller to one side as before mentioned. As a result of the collision, the plaintiff was thrown from his place on the roller to near the southeast corner of the street, and sustained the injuries complained of.

There was evidence that the car was...