Wiedeman v. St. Louis Taxicab Co.

• Decision Date: 07 April 1914
• Citation: 165 S.W. 1105,182 Mo. App. 523
• Parties: WIEDEMAN v. ST. LOUIS TAXICAB CO.
• Court: Missouri Court of Appeals

165 S.W. 1105

182 Mo. App. 523

WIEDEMAN v. ST. LOUIS TAXICAB CO.

St. Louis Court of Appeals. Missouri.

April 7, 1914.

1. MASTER AND SERVANT (§ 330)—COLLISION ON HIGHWAY—MASTER'S LIABILITY—PRIMA FACIE CASE.

In an action for injuries to plaintiff in a collision between his wagon and a taxicab, alleged to belong to defendant "St. Louis Taxicab Company," evidence for plaintiff held sufficient to establish a prima facie case that the taxicab belonged to defendant, and that it was being operated by the chauffeur in the prosecution of defendant's business.

2. MUNICIPAL CORPORATIONS (§ 706)— STREETS—VEHICLES—COLLISION—NEGLIGENCE —QUESTION FOR JURY.

In an action for injuries in a collision between plaintiff's wagon and defendant's taxicab, evidence held to require submission of defendant's negligence and plaintiff's contributory negligence to the jury.

3. TRIAL (§ 260)—INSTRUCTIONS—REQUEST TO CHARGE—INSTRUCTIONS GIVEN.

Refusal of a request to charge, pertaining to the burden of proof and the credibility of witnesses, was not error, where the jury was otherwise properly instructed on such questions.

4. TRIAL (§ 217)—REVIEW—MATTERS OF DISCRETION —CAUTIONARY INSTRUCTIONS.

The giving of cautionary instructions relative to the burden of proof, and what the jury should consider in determining the credibility of witnesses and the weight to be given their testimony, rests largely in the discretion of the trial court, which cannot be convicted of error in refusing them, unless there is manifest abuse of discretion.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Action by Fred Wiedeman against the St. Louis Taxicab Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Collins & Chappell, of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent.

ALLEN, J.

This is an action for injuries alleged to have been sustained by plaintiff by reason of the negligent operation of one of defendant's automobiles, whereby the latter was caused to strike a wagon in which plaintiff was riding. The suit originated before a justice of the peace, where plaintiff had judgment. Upon defendant's appeal to the circuit court, and a trial de novo there, plaintiff again prevailed, and defendant has appealed to this court.

Plaintiff testified that on the afternoon of January 13, 1911, he was driving an ash wagon, drawn by a mule, along Kingshighway, a public street in the city of St. Louis, and was proceeding in a southerly direction along the west side thereof near the curb; that plaintiff was driving his mule in a walk, at a point about opposite the entrance from Kingshighway into Portland Place, another public street in said city, and which extends east and west, intersecting Kingshighway; that as plaintiff approached the said entrance to Portland Place he perceived a street cleaner's cart, a small hand cart, standing in this entrance near the rounded curb at the northwest corner of said intersecting streets; that the handle of the hand cart projected a small distance beyond the curb line into Kingshighway, and that, to avoid striking such handle with his wagon, plaintiff turned out a little, i. e., turned his mule and wagon a little to the east; that as he was passing the cart his wagon was struck by an automobile, or taxicab, which had been proceeding south on Kingshighway, and which the driver thereof was attempting to turn into Portland Place; that the automobile struck the front part of his wagon, and also the mule drawing it, hurling plaintiff to the street, whereby he was injured.

Plaintiff's testimony is not altogether clear as to all the facts concerning the collision, and his is the only testimony relative thereto. However, he says that he was driving very close to the curb, and that he turned his wagon out only about six inches in order to avoid striking the handle of the street-cleaning cart, and that the front wheel of his wagon had passed the latter when the collision occurred. He also says that, though the automobile had previously been proceeding south on Kingshighway, it was making rather a sharp turn into the entrance to Portland Place when it struck the front part of his wagon. Plaintiff further testified that the taxicab in...