Williamson v. St. Louis & M. R. R. Co.

• Decision Date: 05 November 1908
• Citation: 133 Mo. App. 375,113 S.W. 239
• Court: Missouri Court of Appeals
• Parties: WILLIAMSON v. ST. LOUIS & M. R. R. CO.

113 S.W. 239

133 Mo. App. 375

WILLIAMSON v. ST. LOUIS & M. R. R. CO.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

1. CARRIERS (§ 316)—INJURY TO PASSENGERS —STREET RAILROADS—RES IPSA LOQUITUR.

A street car on which plaintiff was a passenger was stopped in the middle of a street crossing, and plaintiff was injured by the pole of a city fire department hose wagon, which crashed through the side of the car as the hose wagon was proceeding to a fire at high speed. Held sufficient to establish a prima facie case of negligence of the railway company under the doctrine of res ipsa loquitur.

2. CARRIERS (§ 320)—INJURY TO PASSENGER— STREET RAILROADS—NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a street car passenger in a collision between the car and a city hose cart, evidence held to require submission of the railway company's negligence to the jury.

3. DAMAGES (§ 208) — PERSONAL INJURIES — PERMANENT INJURY—EVIDENCE — QUESTION FOR JURY.

Evidence held to justify a submission of the issue of the permanency of plaintiff's injury to the jury.

4. APPEAL AND ERROR (§ 1068)—INSTRUCTIONS—DAMAGES—PREJUDICE.

Failure of the instructions to limit plaintiff's recovery to the amount sued for was without prejudice, where the verdict was less than the petition demanded.

5. CARRIERS (§ 300)—STREET RAILROADS—DUTY OF OPERATIVES.

It is the duty of the conductor of a street car, as well as the motorman, to use all means at hand to prevent collision with a fire department hose wagon at a street crossing, if he could have discovered the approach of the wagon by the exercise of ordinary care in time to have averted a collision; the railroad company being responsible alike under such circumstances for the negligence of either conductor or motorman.

6. TRIAL (§ 252)—INSTRUCTIONS—REQUEST TO CHARGE.

A request to charge, while correct as an abstract proposition of law, was properly refused where the standard of care applicable to the facts proved was not mentioned, and it was also devoid of the essential elements of liability or nonliability arising on the facts.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Action by Martha Louise Williamson against the St. Louis & Meramec River Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jefferson Chandler, T. M. Pierce, and S. P. McChesney, for appellant. Taylor R. Young and Frank H. Haskins, for respondent.

NORTONI, J.

This is an action for damages resulting from personal injuries alleged to have been received by the plaintiff while she was a passenger on one of defendant's street cars. The occasion of the injury was a collision with a hose wagon connected with the fire department of the city of St. Louis. Plaintiff recovered, and the defendant appeals.

The testimony on the part of the plaintiff tended to prove that the plaintiff was a passenger on defendant's west-bound car on Franklin avenue. A hose wagon of the city fire department, traveling south at a high rate of speed on Compton avenue, ran against the side of the car on which plaintiff was a passenger. The tongue or pole of the wagon crushed its way through the side of the car, striking plaintiff between the knee and the hip, causing her painful and serious injury. The defendant insists the court should have peremptorily directed a verdict for it in accordance with a request to that effect, for the reason the evidence was insufficient to establish a reasonable inference of negligence against its servants in operating the car. The case is properly one in which the doctrine of res ipsa loquitur inheres. It appears the plaintiff was entirely free from negligence, and that the injury was received while she was a passenger on a street car, the management of which was exclusively in the control of defendant's servants. Under such circumstances, the fact that street cars, when managed with prudence, do not ordinarily collide with other vehicles, without more, introduces into the case a presumption of negligence on the part of defendant's servants sufficient at least to remove the question within the province of the jury, and devolves upon the defendant the duty to overcome the presumption of negligence with evidence of due care on its part. Olsen v. Railway, 152 Mo. 426, 432, 54 S. W. 470; Mitchell v. C. & A. Ry. Co. (Mo. App.) 112 S. W. 291; St. Clair v. St. L. & S. F. Ry. Co., 122 Mo. App. 519, 99 S. W. 775. However, the plaintiff did not invoke the doctrine of res ipsa loquitur, but assumed to prove negligent conduct on the part of defendant's servants, and we will, therefore, notice the facts tending to this end.

It appears Franklin avenue runs east and west. The street car on which plaintiff was a passenger was proceeding westward at a rate of speed between four and six miles an hour. At the point in question the west-bound car track runs on a downgrade. Compton avenue runs northward from Franklin avenue obliquely, tending to the northwest. The hose wagon, en route to a fire, was traveling under high pressure southward or toward Franklin, on Compton avenue. The driver of the hose wagon gave testimony to the effect that the gong attached thereto was constantly being sounded from the fire department's headquarters until the collision occurred. Other witnesses testified the sounding of the gong could be heard two or three blocks. When the defendant's car was about 125 or 150 feet east of the east line of Compton avenue, a bystander, being attracted by the noise of the approach of the hose wagon and realizing the impending danger of a collision, ran into the middle of the street, stood in the center of the west-bound car track, and waved numerous signals with his hand for the motorman to stop. The car continued to approach, however, finally...