Yates v. United Rys. Co. of St. Louis

• Decision Date: 08 June 1920
• Docket Number: No. 16116.,16116.
• Citation: 222 S.W. 1034
• Parties: YATES v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

222 S.W. 1034

YATES v. UNITED RYS. CO. OF ST. LOUIS.

No. 16116.

St. Louis Court of Appeals. Missouri.

June 8, 1920.

Appeal from St. Louis Circuit Court; Kent H. Koerner, Judge.

"Not to be officially published."

Action by Mary Kate Yates against the United Railways Company of St. Louis. From judgment for plaintiff', defendant appeals. Affirmed.

Charles W. Bates, T. E. Francis, and Chauncey H. Clarke, all of St. Louis, for appellant.

Rassieur, Kammerer & Rassieur, of St. Louis, for respondent.

BIGGS, C.

While plaintiff was a passenger on defendant's north-bound Broadway car it collided with a team of horses and wagon at the intersection of Biddle street. It is alleged that the jar, jolt, and sudden stop of the car as the collision occurred caused plaintiff to be thrown against the back of one of the seats of the car and against the side thereof, resulting in personal injuries, which form the basis of this action, and for which plaintiff recovered a judgment below for $1,000. The answer was a general denial.

The charge is general negligence, which is proper; this being a res ipsa loquitur case. The plaintiff being a passenger and concededly free from negligence, proof of the happening of the collision and the injury raises a presumption of negligence against the carrier and made a prima facie case, casting the burden upon defendant of showing that it was free from any act of negligence which caused the injury to plaintiff.

The errors specified are excessive verdict and the giving of the following instruction on behalf of plaintiff:

"Although the jury should find from the evidence in this case that Louis Staake, the driver of the wagon with which defendant's car collided, did not exercise ordinary care in driving said wagon, and although the jury should find from the evidence that such want of care (if there was such want of care) directly contributed to cause the collision by which plaintiff was injured, if you find she was injured, yet, if the jury should find from the evidence that defendant's motorman in charge of the car in which plaintiff was a passenger, if he had exercised a high degree of care such as would have been exercised by a prudent, careful, and skillful motorman, under the same or similar circumstances, would have averted said collision and injury, if any, then plaintiff is entitled to recover."

The objection to this instruction is that it is said to assume negligence on the part of the motorman by using the italicized words set forth in the instruction. The instruction is unhappily worded, and the criticism leveled against it is not unreasonable. However, it must be considered that the jury are reasonably intelligent men, and that they would not have returned this verdict against the defendant had they not believed that the motorman failed to exercise that high degree of care placed upon him by the law.

In the case of Olsen v. Citizens' Railway Co., 152 Mo. 426, 54 S. W. 470, the Supreme Court approved an instruction in identically the same form as the instruction in the...