Smith v. East St. Louis Ry. Co.

• Citation: 123 S.W.2d 198
• Decision Date: 03 January 1939
• Docket Number: No. 24568.,24568.
• Parties: FRED SMITH, RESPONDENT, v. EAST ST. LOUIS RAILWAY COMPANY, A CORPORATION, APPELLANT.
• Court: Court of Appeal of Missouri (US)

123 S.W.2d 198

FRED SMITH, RESPONDENT, v. EAST ST. LOUIS RAILWAY COMPANY, A CORPORATION, APPELLANT.

No. 24568.

St. Louis Court of Appeals. Missouri.

Opinion filed January 3, 1939.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Oliver J. Miller, Lashly, Lashly & Miller and Robert G. Maysack for appellant.

(1) Verdict should be set aside since it was clearly against the weight of the evidence. Roseman v. United Ry. Co. (Mo. App.), 251 S.W. 104; Nufer v. Metropolitan St. Ry. Co. (Mo. App.), 182 S.W. 792; Ziegelmeier v. E. St. Louis Ry. Co., 330 Mo. 1013, 51 S.W. (2d) 1027. (2) Admission of statement by defendant's motorman that "this is one damn good way to get rid of the cabs" was prejudicial and reversible error. Redmon v. Metropolitan Ry. Co., 185 Mo. 1, 84 S.W. 26; Barker v. St. Louis etc. Ry. Co., 126 Mo. 143, 28 S.W. 866; Ruschenberg v. Southern R. Co., 161 Mo. 70, 61 S.W. 626; Koenig v. Union Depot Ry. Co., 173 Mo. 698, 73 S.W. 637; Downing v. St. Louis-San Francisco Ry. Co., 220 Mo. App. 260, 285 S.W. 791; Gotwald v. St. Louis Transit Co., 102 Mo. App. 492, 77 S.W. 125; Alten v. Metropolitan St. Ry. Co., 133 Mo. App. 425, 113 S.W. 691; Renfrow v. Central Coal Co., 223 Mo. App. 1219, 19 S.W. (2d) 766. (3) Court committed reversible error in allowing plaintiff to ask hypothetical question of defendant's witness, Dr. Funsch, which assumed only facts favorable to plaintiff and omitted facts which Dr. Funsch had found and testified to. Bennett v. Punton Sanitarium Assn. (Mo. App.), 249 S.W. 666; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; Harju v. Allen (Minn.), 177 N.W. 1015; Washington R.R. Co. v. Kimmey (Md.), 118 Atl. 648; Schaidler v. Chicago Ry. Co. (Wisc.), 78 N.W. 732; Nichols v. Oregon R.R. Co. (Utah), 70 Pac. 996; Vosburg v. Putney (Wisc.), 50 N.W. 403; Alabama Power Co. v. Bruce (Ala.), 96 So. 346. (4) Picture of street car in newspaper was improper rebuttal evidence. Glenn v. Stewart, 167 Mo. 584, 67 S.W. 237; Seibel-Suessdorf Co. v. Ry. Co., 230 Mo. 59, 130 S.W. 288; Babcock v. Babcock, 46 Mo. 243; Riggs v. Metropolitan St. Ry., 216 Mo. 304, 115 S.W. 969. (5) Excessive verdict for plaintiff should be set aside as being the result of passion and prejudice. Schupback v. Meshevsky (Mo.), 300 S.W. 465; Scully v. Rowling (Mo. App.), 88 S.W. (2d) 394; Norris v. St. Louis Ry., 239 Mo. 695, 144 S.W. 783.

Louis E. Miller and Robert R. Adams for respondent.

(1) (a) The verdict of the jury was supported by substantial testimony, approved by the trial court, and should be permitted to stand. Fisher v. Chicago City Ry. Co., 114 Ill. App. 217; Friedman v. United Rys., 254 S.W. 556; Albert v. Railway Co., 232 S.W. 793; Good Roads Co. v. Railway, 217 S.W. 858; Stussey v. Kansas City Railway, 228 S.W. 531; Harrington v. Kansas City Railway, 217 S.W. 879. (b) Upon seeing a street car 200 feet away, a traveler at a crossing may presume that the motorman in charge of the street car will exercise ordinary care, and it is not contributory negligence to attempt to cross the car tracks. Chicago General Ry. Co. v. Carroll, 91 Ill. App. 356; Chicago City Railway Co. v. Benson, 108 Ill. App. 196. (c) It is not the province of an appellate court in any jury case to weigh conflicting testimony. Gannon v. Gas Co., 145 Mo. 502; Reid v. Insurance Co., 58 Mo. 421; Daniel v. Pryor, 227 S.W. 102, 104; Holzemer v. Met. St. Ry. Co., 261 Mo. 379, l.c. 411. (2) Statement of defendant's motorman was properly admitted as part of the res gestae. Rosenzweig v. Wells, 273 S.W. 1071, 308 Mo. 617; State ex rel. Smith v. Trimble, 285 S.W. 729, 315 Mo. 166; Chawkley v. Wabash, 297 S.W. 20, 317 Mo. 782. (3) Plaintiff is not required to include in his hypothetical question the findings of defendant's medical expert. Jones on Evidence (3 Ed.), sec. 371, pp. 559-560; 22 C.J., p. 796; Holton v. Cochran, 208 Mo. 314; Rosier v. Metropolitan Ry., 125 Mo. App. 159; Logan v. Weltmer, 180 Mo. 322; Taylor v. Metropolitan Ry., 183 S.W. 1129; Atkinson v. American School, 199 Mo. App. 251; Jackson v. Kansas City Ry., 232 S.W. 752; Benjamin v. Metropolitan Ry., 50 Mo. App. 602; Frost v. Association, 246 S.W. 628. (4) The court properly admitted the newspaper picture in rebuttal. App. Abs. p. 73; Resp. Abs. p. 3. (5) The verdict was not excessive, but was a modest compensation for the injuries sustained. McMahon v. United Ry. Co., 203 S.W. 500; Kaemmerer v. Wells, 252 S.W. 730.

HOSTETTER, P.J.

This is a suit instituted in the Circuit Court of the City of St. Louis on the 22nd day of June, 1935, being an action to recover damages for personal injuries growing out of a collision between plaintiff's taxicab and a street car in East St. Louis, Illinois.

The amended petition, upon which the case was tried, in substance was as follows: That plaintiff, about the 7th day of June, 1935, was driving an automobile in a careful manner northwardly upon and along Sixth Street at its intersection with State Street, both open and public highways in the city of East St. Louis, Illinois, and while attempting to cross said intersection he was carelessly and negligently struck by a certain street car belonging to defendant traveling westwardly on State Street, and, as a direct and proximate result thereof, he was thrown with great force and violence against the interior of his car, and sustained certain personal injuries (describing them).

The charges of negligence on the part of defendant were set out in said petition as follows: That defendant's motorman carelessly and negligently failed to exercise ordinary care to keep a careful watch and lookout ahead; that he drove and operated the street car at a high and dangerous rate of speed under the circumstances; that he negligently failed to keep the street car under control so that it could be stopped upon the first appearance of danger; that he violated the humanitarian rule; and that he willfully and wantonly caused the street car to collide with plaintiff's automobile and injured him. Plaintiff asked for $15,000 damages.

Defendant's answer to this petition was substantially that plaintiff's injuries were brought about by his own negligence contributing thereto in certain particulars, to-wit: that plaintiff while defendant's street car was crossing said intersection in a westwardly direction on State Street, drove his taxicab into State Street directly into the pathway of and against said street car at a high, dangerous and excessive rate of speed under the circumstances; that plaintiff negligently failed to obey the boulevard stop sign and had he done so there could have been no collision between the street car and the taxicab; that plaintiff by the exercise of ordinary care could have avoided driving his said taxicab onto the street car tracks and directly into the pathway and against defendant's said street car, thereby causing the collision; that plaintiff negligently failed to keep a lookout ahead to observe the conditions of traffic on said street and particularly failed to observe the westbound street cars; that plaintiff by exercising even ordinary care would have seen the westbound street car at said intersection in time to have avoided driving across State Street and would have swerved his taxicab or slowed it down, so as to have avoided a collision; that plaintiff exceeded the speed limit provided by the statute of Illinois, known as the Illinois Motor Vehicle Law, which prohibited driving in excess of ten miles per hour in the closely built up business portion of any incorporated town or village and in the closely built up residence portion of any town or village at a speed in excess of fifteen miles per hour.

Defendant also pleaded Section 39, Sub-section 2, of that portion of the Illinois Motor Vehicle Law which provides that "motor vehicles driving on public highways shall give the right of way to vehicles approaching along intersecting highways from the right," and cited certain decisions of the Illinois courts, and also alleged that under the law of Illinois and the decisions of the Illinois courts the humanitarian, or last chance, doctrine is not recognized.

No reply was filed.

The trial of the case to a jury was concluded on October 1, 1936, and a verdict returned in favor of plaintiff in the sum of $5000 damages and $100 doctor's bills, totaling $5100, on which verdict a judgment was duly entered.

After an unavailing motion for a new trial the defendant brings the cause to this court by appeal for review.

There are double street car tracks along State Street, the northern track being the westbound and the southern track being the eastbound. The street car involved in this suit was westbound, consequently on the northern track. The distance from the south curb of State Street to the northernmost rail of the westbound street car track is thirty feet one inch, and the distance from the northernmost rail of the westbound street car track to the north curb of State Street is twenty-one feet one inch, and the entire width of State Street is fifty-one feet and two inches.

Plaintiff, being called as a witness on his own behalf, stated: that he was employed as a driver of a taxicab for the Economy Cab Company; that he started to work on the morning of June 7, 1935, and with a passenger bound for the Stock Yards, was traveling north on Sixth Street toward State Street, gave the following account of the collision, viz: "There is a boulevard stop there at Sixth and State. As I came up I stopped to shift my gears and looked first to the east and saw this street car was, I should judge, about a block down from me, and I looked west and there was an automobile coming and he went by me and I pulled out. By then it looked to me as though the street car was 150 feet, or maybe 200 feet, from me and I thought I had time to go ahead to make it across. But I didn't have time. The second time I looked at the street car it was when it was 150 or 200...