Twelkemeyer v. St. Louis Transit Co.

• Decision Date: 03 November 1903
• Citation: 102 Mo. App. 190,76 S.W. 682
• Parties: TWELKEMEYER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

76 S.W. 682

102 Mo. App. 190

TWELKEMEYER v. ST. LOUIS TRANSIT CO.

Court of Appeals at St. Louis, Missouri.

November 3, 1903.

STREET RAILROADS—NEGLIGENCE—PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE — COLLISION WITH VEHICLE—QUESTION FOR JURY—INSTRUCTIONS—GENERALITY — RIGHT TO OBJECT—WAIVER.

1. In an action against a street car company for injuries caused by defendant's car colliding with plaintiff's buggy from the rear, evidence considered, and held to require submission of the issue whether plaintiff was guilty of contributory negligence.

2. In an action against a street car company for personal injuries resulting from defendant's car colliding with plaintiff's wagon, an instruction, if the servants of defendant negligently ran the car upon plaintiff's team, and by ordinary care could have avoided doing so, and such negligence was the cause of the injuries, to find for plaintiff, did not constitute reversible error because too general, where other charges restricted plaintiff's recovery to the negligence specifically pleaded.

3. In an action for personal injuries, in which the petition contained allegations of general damages, and defendant did not object to evidence of plaintiff's earning capacity, it thereby waived its right to object to an instruction authorizing the awarding of damages for loss of time.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by August Henry Twelkemeyer against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Spring avenue is a public thoroughfare in the city of St. Louis, unconstructed and but a common dirt street at the time of the accident presently considered, extending northwardly and southwardly, and intersected by Dodier street, Herbert street, and Sullivan avenue, all streets extending eastwardly and westwardly. Defendant was then operating its line of street cars upon its double-track street railway on Spring avenue; and plaintiff on March 6, 1902, between 7 and 9 o'clock p, m.—a newspaper carrier— in a low, one-horse cart, emerging from Dodier street, drove northwardly upon defendant's east track, traveling in safety for the distance of a block, passing Herbert street, and arriving within about 50 feet of Sullivan avenue. Plaintiff had completed his deliveries, and was returning to his home, No. 3809 Lee avenue, and before turning into Spring avenue looked to the north and south, and perceived no cars in sight; but when between Sullivan avenue and Herbert street he heard a north-bound car approaching from the rear on the east track, as he estimated, about 150 feet behind him, and he whipped his horse to full speed without leaving the east track; also observing a south-bound car approaching from the north on the western track; and when about 50 feet south of Sullivan avenue, and as he was attempting to turn upon the roadway east of the east track, the cart was struck by the north-bound car in the rear, pushed along by it for 10 or 15 feet, thrown over upon the western track, and the horse and cart immediately struck by the south-bound car on the latter track, the horse fatally injured, and the cart demolished; and when the cars were stopped the north-bound car had passed about 20 feet after striking the cart, and the southbound car, on the west track, had passed the other car, and stopped a short distance below it, and plaintiff was extricated by defendant's employés from under the front of the south-bound car. The evening was dark, and the scene of the occurrence but poorly lighted. As not infrequently appears in these cases, there was considerable discrepancy in the testimony regarding the rate of speed at which the two cars were moving. On behalf of the plaintiff, additional to his own statements, three men were introduced as witnesses who were walking northwardly on Spring avenue, beyond the scene of the occurrence, and had their attention directed to it by noise and cries, and, turning, saw the north-bound car in collision with plaintiff's vehicle, and the southbound car run over the horse. From this testimony it...