Appeal from St. Louis Circuit Court; George H. Shields, Judge.
NIXON, P. J.
This was an action commenced in the circuit court of the city of St. Louis upon the following petition (caption omitted): "Now comes the plaintiff in the above-entitled cause, and for cause of action states that the defendant herein is a corporation, duly organized and existing under and by virtue of the laws of the state of Missouri, and doing business in the city of St. Louis, and throughout the time mentioned herein was the owner of the horses and wagon referred to herein, and was in charge of them by its agents, employés, and servants; that at or about noon on Saturday, the 31st day of October, 1908, while plaintiff was in the act of crossing Washington avenue, at the intersection of Sixth street, both being open public streets in the city of St. Louis, defendant, by its agents, employés, and servants in charge of its horses and wagon, and while driving them in a westwardly direction at said place, so negligently, carelessly, and unskillfully managed the same as to cause or suffer the same to be run against and strike plaintiff, knocking her down upon the street and running over her, injuring her in the manner hereinafter more particularly set forth. Plaintiff further states that at the aforementioned time said streets, and more especially at their intersection, were extraordinarily congested with people, and that the highways, as well as the sidewalks, were crowded with people; that within a block and a half of the aforesaid intersection a building was afire, and that the city fire department was operating thereon; that the servants of the defendant in charge of said horses and wagon had knowledge of these facts (and by the exercise of ordinary care could have traveled over another street and thereby avoid injuring plaintiff), but that said agents or servants negligently and carelessly drove defendant's team of horses and wagon through a dense mass of people, which act of negligence directly contributed to plaintiff's injuries herein alleged; (that by the exercise of ordinary care defendant's agents or servants, or either of them, could have dismounted from said wagon and could have walked before defendant's horses and warned people in the highway of the approach of defendant's horses and wagon, but that all of said agents or servants negligently and carelessly sat upon said wagon, and thus negligently and carelessly drove defendant's team of horses and wagon through a dense mass of people, which act of negligence contributed directly to plaintiff's injuries as herein alleged). Plaintiff further states that the agents or servants of defendant in charge of said horses and wagon saw, or by the exercise of ordinary care would have seen, plaintiff in a position of danger, and could, by the exercise of ordinary care, have stopped said horses and wagon, or could, by the exercise of ordinary care, have changed the course of said horses and wagon, and thus could have avoided injuring plaintiff; but that said agents or servants negligently and carelessly failed to use ordinary care to discover plaintiff in a position of danger, and after they saw her in such position, or by the exercise of ordinary care would have seen her, they negligently failed to stop or change the course of said horses and wagon, each of which acts of negligence directly contributed to plaintiff's injuries as herein alleged; that, while approaching near the place where plaintiff was struck by said horses and wagon, said agents or servants caused or suffered the same to run at a high and dangerous rate of speed, which act of negligence directly contributed to plaintiff's injuries as herein alleged; that defendant was further negligent through its agents and servants in charge of said horses and wagon in failing to give plaintiff any warning or other signal whatever of the approach of said horses and wagon, which said negligence directly contributed to plaintiff's injuries as herein alleged. Plaintiff states that, by reason of being run against, struck, and knocked down upon the street and run over by the negligence of the defendant as aforesaid, she was injured, cut, crushed, and bruised upon her left ankle, her left instep, right side of her neck and face under right eye, her left ankle was sprained and cut and her left instep was crushed, and her breastbone was broken, her nervous system was severely shocked, shattered, and weakened, and the muscles, nerves, and tissues of her breast and of her left leg were injured; that because of said injuries plaintiff suffered great pain in mind and body, and that she suffered permanent injuries and defects on her body; that she suffered loss in earnings of her labor; that she has expended and will be obliged to expend large sums of money for medical attendance and medicines; and that her health and strength are permanently injured
and impaired, all in the sum of four thousand five hundred dollars ($4,500.00), for which sum, together with costs, plaintiff prays judgment."
The defendant's amended answer is as follows (caption omitted): "Now comes defendant and on leave of court first had and obtained files its amended answer, and admits that it is a corporation, and denies each and every other allegation in plaintiff's petition contained. And, further answering, defendant says that plaintiff's injuries were caused by her own negligence in failing to exercise ordinary care in looking and listening while crossing a public highway for approaching vehicles, and by carelessly walking in front of the vehicle driven by defendant's servants when said vehicle was so short a distance from plaintiff as to prevent defendant's servants in charge thereof from stopping the same, by the exercise of reasonable care, in time to avert a collision with her. Wherefore defendant prays judgment and to go hence free of costs."
Upon trial the plaintiff obtained judgment in the sum of $500, from which the defendant has appealed.
The principal contention of the appellant is that the trial court erred in refusing to give a peremptory instruction at the conclusion of the evidence directing the jury to return a verdict for the defendant. The accident occurred at noon, on Saturday, October 31, 1908, in the heart of the shopping district of the city of St. Louis, at the intersection of Sixth street and Washington avenue. The respondent was a shop girl, 18 years of age. She was going to her noon lunch when struck down and injured by a loaded wagon drawn by a team of horses belonging to the defendant brewing company. The plaintiff's evidence tended to show that at the time of the accident there was an extraordinary congestion of people at the...
