Twelkemeyer v. St. Louis Transit Co.
| Decision Date | 03 November 1903 |
| Citation | 76 S.W. 682,102 Mo.App. 190 |
| Parties | TWELKEMEYER, Respondent, v. ST. LOUIS TRANSIT CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
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, Hebert 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 seven and nine o'clock p. m., a newspaper carrier in a low one-horse cart emerging from Dodier street, drove northwardly upon the defendant's east track traveling in safety for the distance of a block, passing Hebert street and arriving within about fifty feet of Sullivan avenue. Plaintiff had completed his deliveries and was returning to his home, 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 Hebert street, he heard a north-bound car approaching from the rear on the east track as he estimated, about one hundred and fifty 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 fifty 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 ten or fifteen 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, the cart demolished and when the cars were stopped, the north-bound car had passed about twenty feet after striking the cart and the south-bound car on the west track had passed the other car and stopped a short distance below it, and plaintiff was extricated by the defendant's employees 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 south-bound car run over the horse. From this testimony it further appeared that the fencing of the base-ball grounds on the east side of Spring avenue between Sullivan avenue and Hebert street was then in course of reconstruction and the lumber for such purpose was piled on the east side of Spring avenue and for a distance and at the place where the cart was struck obstructed the eastern part of the roadway and that both cars were running at a high rate variously estimated at from twenty to twenty-five miles an hour.
On behalf of the defendant the testimony of the motorman and conductors tended to show that the cars were well lighted, their headlights burning, the gongs vigorously and continuously sounded by reason of the darkness, the standard of speed prescribed by city ordinance not exceeded, and the statements of the crews of the cars were to a limited degree confirmed by the testimony of two passengers on the south-bound car, the north-bound car being without passengers.
The final petition first alleged negligence in general terms, charging that at the time of the collision each of the colliding cars were carelessly, negligently and unskillfully conducted and operated by the servants and agents of defendant corporation, which carelessness, negligence and unskillfulness were the cause of plaintiff's injuries. Specific assignments of negligence were alleged by violations of the ordinance limiting the speed of street railway cars, and failure to comply with the ordinance to keep a vigilant watch for all vehicles and persons on foot either on the track or moving toward it, and at the first approach of danger to such person on foot or vehicle, the cars should be stopped in the shortest time and space possible, and these ordinances were read in evidence. The petition concluded with a general averment of permanent injuries and prayer for damages in a large sum.
The answer consisted of a general denial and a plea of contributory negligence. The issues were joined by a reply in form of a general denial and after trial a jury returned a verdict for plaintiff. After unsuccessful motions in arrest and for new trial, defendant appealed.
Judgment affirmed.
Boyle, Priest & Lehmann and Charles A. Houts for appellant.
(1) The plaintiff was guilty of contributory negligence as a matter of law in failing to look back from time to time while he was driving along the track. Moore v. Railway, 75 S.W. 672; Daives v. Railway, 159 Mo. 1; Adolph v. Railway, 76 N.Y. 530; Winch v. Railway, 33 N.Y.S. 615; Maxey v. Railway, 113 Mo. 1; Vogg v. Railway, 138 Mo. 172; Winter v. Railway, 8 Miscl. (N. Y.) 362; Morrissey v. Bridgeport Traction Co., 68 Conn. 215; Seik v. Railway, 9 Ohio C. D. 51; 2 Thompson on Negligence, secs. 1454-1457; Booth on Street Railways, sec. 316; Nellis on Street Surface Railroads, 344; Elliott on Roads and Streets, sec. 761. (2) Plaintiff was guilty of contributory negligence in not driving directly from the track when he discovered the approach of the car behind him. Culbertson v. Railway, 140 Mo. 35. (3) There was no evidence of speed of the north-bound car. It was therefore error to submit to the jury by instruction the question of defendant's negligence in operating the north-bound car at a speed in excess of eight miles an hour. Riley v. Sherwood, 144 Mo. l. c. 364; Graney v. Railway, 157 Mo. 666. (4) Where the specific acts of negligence are charged, a recovery by the plaintiff should be confined to the specific acts so charged. Pryor v. Railway, 85 Mo.App. 367; Fuchs v. St. Louis, 167 Mo. 640; Schlereath v. Railroad, 96 Mo. 509; Jacquin v. Railway, 57 Mo.App. 320. (5) Plaintiff's instruction number four, defining the elements of damage, directed the jury to consider, among other things, plaintiff's loss of time, because not pleaded as one of the plaintiff's elements of damage. Edwards v. Railway, 79 Mo.App. 257; Harper v. Railway, 70 Mo.App. 604; Muth v. Railway, 87 Mo.App. 422.
Earnest E. Wood for respondent.
(1) This is a question for the jury, which it has decided. Fishback v. Railway, 42 N.Y.S. 883; Eessler v Railroad, 38 N.Y.S. 799; Cline v. Railroad, 43 La. Ann. 327. (2) He was thrown in sudden peril and did the best he could. In such a case he is not guilty of negligence, even though he failed to pursue the safest course. Kleiber v. Railway, 107 Mo. 240; Siegrist v. Arnat, 10 Mo.App. 197; Dickinson v. Railway, 120 Mo. 140; Ephland v. Railway, 57 Mo.App. 147; Dutzi v. Geisel, 23 Mo.App. 676. The question of contributory negligence in this respect is one for the jury. Bush v. Railroad, 113 Mich. 513; Harper v. Phil. T. Co., 175 Pa. St. 129; Railroad v. Preston, 59 N. J. L. 264; Railroad v. Zeiger, 78 Ill.App. 463; Orensen v. Railroad, 149 N.Y. 590; Bernhard v. Railroad, 51 N. Y. St. 880; Gibbons v. Railroad, 155 Pa. St. 279; Consolidated T. Co. v. Hoight, 59 N. J. L. 577; Lyman v. Union T. Co., 114 Mass. 83. The question of contributory negligence in any particular case must be governed by the facts and circumstances which pertain to the case as made. Towner v. Railway, 52 Mo.App. 648. Plaintiff had the right to presume that the agents of the defendant would do their duty and obey the law. Moberly v. Railroad, 17 Mo.App. 15; Lynch v. Railway, 112 Mo. 420; Sandifer v. Lynn, 52 Mo.App. 553; Eswin v. Railroad, 96 Mo. 290; Gratiot v. Railroad, 116 Mo. 450; Sullivan v. Railroad, 117 Mo. 214. (3) The error, if any, was cured by the other instructions. If there was error, it was harmless. Fairbanks v. Long, 91 Mo. 628; Chambers v. Benoitt, 25 Mo.App. 520. (4) As the appeal is wholly without merit, the conclusion is justified that it was taken for delay, and the...
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