Zander v. St. Louis Transit Co.

• Decision Date: 01 July 1907
• Parties: ZANDER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

103 S.W. 1006

206 Mo. 445

ZANDER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 2.

July 1, 1907.

1. TRIAL — INSTRUCTIONS — UNDUE PROMINENCE TO PARTICULAR MATTERS.

In an action by a teamster for injuries caused by a collision with a street car, an instruction that all statements made by the plaintiff as a witness which are against his own interest may be taken as true, but his statements in his own behalf are only to be given such credit as the jury, under all the facts in evidence, deem them entitled to, is erroneous, as singling out the plaintiff as a witness.

2. SAME — USURPING PROVINCE OF JURY — CREDIBILITY OF WITNESSES.

The instruction was also erroneous as usurping the province of the jury in weighing his evidence.

3. SAME.

In an action by a teamster for injuries caused by a collision with a street car, an instruction that if the car could have been seen or heard by the plaintiff in time to have avoided the collision, had he looked or listened, then the fact that he says he did look and listen and did not see or hear the car, in the absence of some obstacle to prevent his seeing or hearing, has no probative force to prove that he looked and listened and did not see or hear the car, was erroneous, where the night on which the accident happened was so dark that he might

have looked and not have been able to see the car.

4. SAME — SINGLING OUT TESTIMONY.

The instruction was also improper as singling out and commenting upon plaintiff's testimony.

5. NEGLIGENCE — INSTRUCTIONS — EFFECT OF CONTRIBUTORY NEGLIGENCE.

In an action by a teamster for injuries caused by a collision with a street car, an instruction that while the burden was upon the defendant to establish the plaintiff's contributory negligence it did not relieve the plaintiff of the burden of proving that his injuries were solely caused by the defendant's negligence, and that if the plaintiff's injuries were caused by the mutual and concurring negligence of plaintiff and defendant's motorman, and the negligence of neither, without the concurring negligence of the other, would have caused the injury, then the plaintiff was not entitled to recover, was erroneous, since the defendant might be liable even if the accident was not caused by its sole negligence.

6. STREET RAILROADS — COLLISIONS WITH VEHICLE — DUTY OF DRIVER.

A person driving along a public street on which there is a street railway track is not required to look behind him constantly for cars, nor to look and listen for the approach of cars, before driving over the track, where he has no warning of their approach.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

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

Chas. L. Krone and Henry A. Rosskopf, for appellant. Boyle & Priest and Glendy B. Arnold, for respondent.

GANTT, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of defendant. The judgment was rendered at the February term, 1904, and after an ineffectual motion for a new trial the plaintiff appealed to this court. The action is for damages for personal injuries to plaintiff, a teamster, by the alleged negligence of defendant's motorman in charge of one of its street cars, in running said car into the wagon which plaintiff was driving, on the night of December 10, 1902, at a point on South Broadway, a short distance north of Bowen street. The petition in substance alleges the plaintiff was a teamster, and, on the night alleged, was driving a lumber wagon, drawn by two horses, upon and along South Broadway east of the eastern track of defendant's railroad thereon, and had reached a point north of Bowen street which intersects Broadway; that no part of his wagon was within defendant's track; that at said date the street was very muddy, and in consequence the tracks were invisible at places; that the street was narrow, only about 14 feet from the track to the sidewalk, and lined with the defendant's poles; that owing to the defective street he was compelled to drive near defendant's east rail; that he was exercising great care and caution in endeavoring to find a safe portion of said street; that, while so driving, a car of defendant in charge of its servants and employés was run in such a careless and reckless manner, and propelled at a great and unlawful speed, to wit, 25 or 30 miles an hour, and, without the sounding of any gong or bell, or giving plaintiff any other signal, was run into plaintiff's wagon, whereby it was overturned and plaintiff thrown violently to the ground and his body entangled in the double tree and front wheel and his leg broken and cut, whereby he was put to great expense for medicines and medical treatment and suffered permanent and incurable injury to his damage in the sum of $10,000. The answer was a general denial and a plea of contributory negligence, in that plaintiff was driving near or on defendant's tracks in front of the approaching car and so close as to render it impossible for the motorman to stop in time to avoid the collision, and in driving upon defendant's track without looking or listening for the approach of cars, or, having listened or looked, in failing to heed when by the exercise of reasonable care he could have avoided the collision. Reply denied all the new matter.

For the plaintiff the evidence tended to establish the following facts: Plaintiff was a teamster, driving a lumber wagon, and was returning home in the evening of December 10, 1902. He had a skeleton lumber wagon drawn by two horses, and between 8 and 9 o'clock at night arrived at a point a little north of Bowen street, on South Broadway. He was going north on the latter street slowly, on the east side, with his left or west wheels alongside of or partly within the east track of defendant's railway, which has a double track there. He had been driving along South Broadway for an hour or more before he was struck at the point last mentioned. The street along this part of his road was rough with holes and rocks in places, and he was picking out the best part of the highway. He testified he was listening, and looked back several times to see if any car was coming, but could not tell how often he did this, but "it was every now and then." The night was dark and cloudy, and the air wet, with the temperature about freezing. He was seated on his wagon, and had reached a point some 40 feet north of Bowen street, when his wagon was struck by a car of the defendant coming up from the rear. The wagon was upset, the tongue forced through the fence to a yard on the east side of the street, one of the horses pushed into the gate there, and the vehicle broken to pieces. His leg was broken and crushed, and he was long disabled and put to expense for drugs and medical attention. He was unable to work at the trial, February 15, 1904, two years after the injury, and the medical witnesses testified to the permanent character of his injuries. He testified that, though he listened and looked back occasionally to watch for cars, he did not hear or see anything, and kept on driving. There was one gas lamp at the southeast corner, one at the northwest corner of Bowen street and Broadway, and another on the west side of Broadway, about 75 feet north. Gus Bowenschulte, Clarence Luddon, and Walter Parent were standing at the southwest corner of Broadway and Bowen streets at the time of the collision. They testified that the night was dark, muddy, and wet, and that Broadway around Bowen street is pretty bad, being full of holes. All of these witnesses saw plaintiff on his wagon going north on the east side of Broadway, with the left wheels of the wagon within, and the right wheels without, the east rail of the north-bound or east track of the defendant. Bowenschulte testified that: "A few seconds after seeing Zander, the plaintiff, I noticed the car coming north, going at a pretty good rate of speed, and noticed the car cross the crossing, and just that quick it hit the wagon. * * * I saw Zander as he was crossing Bowen street, and the next thing I saw after that was the car about a half block south of Bowen and the wagon a little north of Bowen. The car was going very fast. When I heard the car strike the wagon, Zander was a little north of the north crossing of Bowen street."

Parent testified: "When I first saw the car it was about 50 feet south of the south crossing of Bowen street. I had not heard or seen the car before that. At no time did I hear any gong, bell, or signal issue from that car. Having seen the wagon, and immediately afterwards seeing the car coming, I thought right away there would be a collision, and I looked for the wagon, and when I looked in that direction the car was up to the wagon. The car was running very fast. The collision occurred about 50 feet north of the north crossing. The light at the top of the car was very dim. I did not hear any sound from any gong or bell while the car was approaching Bowen street, or after it passed." Bowenschulte testified that he heard no gongs, signals, or bells sounded by the motorman, and there was an ordinary headlight on the top of the car.

Tony Schumacher testified he was walking down Broadway there at the time, going south, and noticed Zander, but did not hear any signal or see any light on the car. The night was dark and foggy. All of these witnesses testified that the car ran pretty near up to Grundy street, the next cross street north, after the collision. Schumacher also testified that the car was going very fast, about 30 miles an hour.

George Ware also testified that he did not hear any bell or signal. Chas. J. Gooding, a witness for the defendant, testified he was a passenger on the car, and that just after the car passed over the crossing at Bowen street the motorman struck three or four sharp alarms on his gong, and, knowing they were over the...