Walker v. St. Louis & S. Ry. Co.

• Decision Date: 12 April 1904
• Citation: 106 Mo. App. 321,80 S.W. 282
• Court: Missouri Court of Appeals
• Parties: WALKER v. ST. LOUIS & S. RY. CO.

80 S.W. 282

106 Mo. App. 321

WALKER v. ST. LOUIS & S. RY. CO.

St. Louis Court of Appeals. Missouri.

April 12, 1904.

STREET CAR—COLLISION WITH VEHICLE—CONTRIBUTORY NEGLIGENCE—CREDIBILITY OF WITNESS—INSTRUCTION—DISCRETION.

1. The driver of a vehicle who attempts to cross a street railway track between cars blocked and stationary, and who, while his passage is delayed by an obstructing vehicle, is injured in a collision resulting from the sudden starting of a car, is not guilty of contributory negligence as a matter of law.

2. Where the accounts of a street railway accident given by witnesses for the parties are directly contradictory, an instruction that the jury may discredit the entire statement of any witness believed to have testified falsely in any material particular is not an abuse of discretion.

Appeal from St. Louis Circuit Court; H. D. Wood, Judge.

Action by Andrew B. Walker against the St. Louis & Suburban Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Dawson & Garvin, for appellant. Waddell, Welch & Hall, for respondent.

Statement.

REYBURN, J.

On December 9, 1902, plaintiff, then in the United States government postal service, drove south from Morgan street along the west side of Seventh street, intending to gather up the mail deposited in box at northeast corner of Lucas avenue and Seventh street. The vehicle was a single-horse covered wagon, ordinarily used in St. Louis for such purpose, with a step in the rear, upon which was standing the driver's assistant, who collected the mail from the letter boxes, and who jumped and escaped injury in the occurrence described. The testimony presented more than even the usual conflict, but the time was the forenoon, either about 8 or 9 o'clock and, according to plaintiff's account, which received confirmation and corroboration in many important details from a bystander, a retail merchant, and his fellow mail collector, the street cars operating on the single street car track on Seventh street, in temporary use by defendant, but belonging to the transit system, and then employed by cars of both, were blocked and stationary, the car of defendant later participating in the collision with the mail wagon was motionless on south side of Lucas avenue, with a clear space of 15 feet dividing it from the next car north, whereupon plaintiff sought to guide his vehicle at a brisk trot across in such space between the two arrested cars, and as he was thus proceeding a wagon moving westwardly on Lucas avenue turning northward on east side of Seventh street momentarily delayed him in getting safely across in front of the car, which, motionless up to that time, was started, and struck about the center of the wagon, and threw plaintiff against the side, fracturing two of his ribs. Plaintiff's testimony further tended to show that the colliding car was still when he started across, and the motorman was inattentive to his duties, not looking ahead, but, with his head averted, was looking around, or in conversation, when he caused the car to move onward. As intimated, the version of the affair presented by the witnesses for defendant, a solitary passenger in the car, and its two employés in charge, differed radically from the description by plaintiff and the witnesses on his behalf, and tended to establish gross negligence and reckless exposure to injury by plaintiff in driving directly in front of an approaching and moving car.

Opinion.

1. The errors assigned are introduced at the portal of the case by the...