Wallack v. St. Louis Transit Co.

• Decision Date: 19 February 1907
• Citation: 100 S.W. 496,123 Mo. App. 160
• Parties: WALLACK v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

100 S.W. 496

123 Mo. App. 160

WALLACK v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

February 19, 1907.

Rehearing Denied March 5, 1907.

1. STREET RAILROADS—INJURY TO PERSON ON TRACK—NONSUIT.

Where, in an action for injuries to one driving along a street car track, by collision with a car approaching from the rear, there was evidence that he drove upon the track when the car was 75 or 100 feet away, and that the car could have been stopped within 15 or 20 feet, and the motorman admitted he saw plaintiff before and when he turned upon the track, the court properly refused to nonsuit plaintiff, though the accident would not have occurred except for his own negligence.

2. SAME—INSTRUCTION.

In an action for injury to one driving along a street car track by collision with a car approaching from the rear, an instruction that though plaintiff was negligent in driving on the track, if the motorman saw the wagon in a position of danger in time to have prevented the collision by the exercise of ordinary care, and failed to do so, the jury could not find against plaintiff, on the ground "that his own negligence directly contributed to his injury" was not erroneous, as instructing that his contributory negligence would be no defense.

3. TRIAL — INSTRUCTIONS—APPLICABILITY OF EVIDENCE.

In a personal injury action, it was error to authorize the assessment of damages for plaintiff's loss of earnings, where there was no evidence as to their value.

4. STREET RAILROADS—PERSON ON TRACK— DUTY OF CONDUCTOR.

A street car conductor owes no duty to look out for persons driving along the track in front of a car.

5. SAME—REQUESTED INSTRUCTION.

In an action for injury to one driving along a street car track, by collision with car approaching from the rear, it was proper to refuse to instruct that plaintiff must prove the collision was caused directly and "solely" by defendant's negligence; but the instruction would have been proper had "proximately" been used instead of "solely."

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by Frank Wallack against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Gravois avenue is a highway in the city of St. Louis, running north and south. It is crossed by Eichleberger street, running east and west, at 4,200 south, and by Bates street, one block south of Eichleberger. The block between Eichleberger and Bates streets is 750 feet long. The grade on Gravois avenue between these streets, for the first 150 or 175 feet, is slightly descending, then about level for 150 or 200 feet, and ascending the balance of the distance. In July, 1903, defendant company maintained and operated, by electric power, a double-track street railroad on Gravois avenue. Cars traveling south on this road occupy the west track and those traveling north the east track. Between the curb and tracks on either side there is a paved roadway 11 feet, 9 inches wide. On July 11, 1903, plaintiff was driving an ordinary farm wagon, drawn by a span of mules south on Gravois avenue. The seat on which he was sitting was at the front end of the wagon, and was raised about two feet above the floor of the wagon bed. His load consisted of a barrel of salt, a grindstone, some barbed wire, and a jug of whisky. Plaintiff testified that he was driving south on the west track of the railroad, when he passed Eichleberger street; that he met a wagon, and turned east on the west track to let it pass, and then saw a car coming south of Bates street, and turned "cater-cornered" off of the east track on to the west one; that he looked back, but the barrel of salt, which he says was standing on end just behind him, prevented him from seeing a car, which was coming south on the west track. Plaintiff also testified that he did not hear the car or the gong sounded, and that just as he pulled on the track a car came and struck him. On cross-examination, plaintiff said he had driven about 25 yards on the west track before he was struck. The collision took place from 150 to 175 feet north of the crossing of Bates street, and where the grade on Gravois avenue is slightly ascending. The north-bound car, to avoid which plaintiff turned off the east track, stopped at Bates street to take on passengers, and the collision occurred at this time, and while said car was standing still. H. C. Bauer the motorman in charge of the north-bound car, was called as a witness for defendant, and estimated the distance the south-bound car was from plaintiff, when he pulled on the west track, at from 75 to 100 feet. John Doyle, an experienced motorman, testified he was acquainted with Gravois avenue, between Eichleberger and Bates streets, and with defendant's railroad at that point; that a car 200 or 300 feet north of Bates street could be stopped in from 12 to 15 feet, if running at 8 miles an hour; and in 20 feet, if running 10 miles an hour. Other evidence tends to show the car was running from 8 to 10 miles an hour. On the part of defendant, the evidence of passengers on the north-bound car, of a passer-by in a carriage, and also of the motorman and conductor in charge of the colliding car tends to show that the gong was sounded either continuously, or at very frequent intervals, from Eichleberger street to the point of collision; that plaintiff, without looking or listening drove his team of mules off of the east track over to and on the west one, immediately in front of the car (within 12 or 15 feet of it), and that the motorman did all in his power to stop or check the speed of the car to avoid the collision, but the wagon was so near when the plaintiff put himself in a position of peril as to allow neither time nor space in which to stop the car. Witnesses who had seen plaintiff driving his wagon a few hours before the accident testified he was on his back, drunk, letting his mules go at random. Others present at the scene of the accident testified that the odor of whisky was on plaintiff immediately after the collision. In rebuttal, plaintiff testified he was sober, and had not taken a drink from his jug. Plaintiff received serious and permanent injuries on account of which he lost a great deal of time, the value of which is not stated in the evidence, and his wagon was smashed to pieces. The mules were unhurt. The jury found the issues for plaintiff, and awarded him $2,405 damages.

Boyle, Priest & Lehman,...