125 Mo. App. 121 | Mo. Ct. App. | 1907
The suit is for damages to plaintiff’s team, a wagon and harness, occasioned by the street car having collided therewith. The petition is in proper form. Its allegations support and the evidence tended to prove the following facts. Plaintiff, who is the proprietor of a livery stable in the city of St. Louis, owned the team, wagon and harness mentioned, and the same were in charge of her driver, on the night in question. He was seated in the front end of the wagon, driving the team north on south Broadway, toward the city, immediately outside the city limits in St. Louis county, when a street car, operated by the • defendant St. Louis Transit Company, running at from twelve to fifteen miles per hour, from the south, collided with the rear end of the wagon, from which collision the wagon was demolished, one horse was killed, the other injured, and the harness practically destroyed. The night was dark. • It had been raining and was then misting some. The plaintiff’s driver was returning from St. Rose Hospital in the county near the city limits, about 10:30 p. m. He drove along the east side of south Broadway, a public thoroughfare, in which is located defendant’s double car tracks, for probably five hundred feet, until he reached a point where the recent rains had washed gullies, along the side thereof, rendering it unsafe for travel. When he encountered the gullies, he drove on defendant’s track occupied by its north-bound cars, which track was macadamized between the rails. Immediately before and while in the act of driving upon the track, he looked to the south and listened for an approaching car, and seeing none, continued to drive northward on the track at about five miles an hour, for a distance of four hundred and seventy feet, when a
As said before, the car was under the actual control of the St. Louis Transit Company, by whom it was being operated. There was no evidence whatever connecting the defendant United Railways Company with the operation of the car. The case was tried on the theory that the United Railways Company owned the car and its liability Avas sought to be established on the principle of agency; that is to say, it was insisted the St. Louis Transit Company, the lessee, was the agent of the United Railways Company, the owner, and that the United Railways Company was liable as principal for the negligent act of its agent, operating its road, in support of which plaintiff introduced in evidence a Avritten lease dated September 30, 1899, a copy of which may be found in Moorshead v. United Railways Co., 119 Mo. App. 541, 96 S. W. 261, whereby the United Railways Company, as OAvner, leased and demised its lines and cars with competent legislative authority so1 to do, to the St. Louis Transit Company, in consideration of certain reservations of rent and valuable considerations therein mentioned, for a term of forty years. This lease and no other evidence was introduced tending to connect the United Railways Company with the road, its management or its operation of the car.
Defendants introduced no evidence. The court de
1. The car was being operated solely by the St. Louis Transit Company, under a competent lease authorized by legislative authority, by virtue of which it was the lessee in possession of the car and tracks and not the partner or agent of the United Railways Company, and there being no evidence tending to show the United Railways Company was engaged in the operation of the car or participated in any manner in the negligent act of the Transit Company complained of, the learned trial judge erred in referring the case to the jury insofar as the United Railways Company was concerned. The lease mentioned and the identical question here presented, is set out and fully discussed by this court in Moorshead v. United Railways Company, 119 Mo. App. 541. That case has recently been affirmed by the Supreme Court In Banc, in 203 Mo. 121,100 S. W. 611, and for the reasons given in the opinion of this court above cited, the judgment against the United Railways Company should be reversed.
2. It is urged the court should have directed a verdict for the defendant, St. Louis Transit Company, as well. We are not inclined to this view. The plaintiff’s driver looked and listened for the car prior to going upon the track and neither saw nor heard one although the evidence shows he could have seen the car which was lighted, for at least eight hundred feet. He certainly cannot be declared negligent as a matter of law for not looking a second time within one minute thereafter, while driving four hundred and seventy feet northward, along the track, and if he could, it would be immaterial on the record here, for the entire case predicates and is prosecuted upon the last fair chance “ doctrine, which presupposes the injured party to have been negligent in the first instance, and fixes the liability upon the guilty party only for the last negligent
3. At the instance of plaintiff, the court instructed as follows:
“The court instructs the jury that if they believe from the evidence that defendants operated the street car referred to by the witnesses in this cause, and that said car ran upon tracks laid in South Broadway, St. Louis county, and that said South Broadway was at the time of the collision mentioned in the evidence, a public highway open for travel.
• “And further find that plaintiff’s team and wagon were being driven in a northwardly direction on , said track in said South Broadway on the night of the day of August 21, 1904; and further find that while plaintiff’s team and wagon were being so driven, one of defendant’s cars, in charge of and being operated by defendant’s servants, coming and moving along said tracks in the same direction as plaintiff’s team and wagon, ran into and against plaintiff’s wagon from the rear, thereby killing one of the horses of said team, and injuring the other horse, and breaking said wagon and the harness thereto.
“And if you further believe from the evidence that the motorman in charge of defendant’s car which struck plaintiff’s wagon, saw plaintiff’s wagon and team on the track and in a: position of imminent peril, or by the exercise of ordinary care would have seen plaintiff’s wagon and team on said track and in such position of imminent peril, in time to have controlled the speed of said car and avoided the collision by the exercise
Defendant St. Louis Transit Company complains of this instruction and argues that it did not require the jury to find the plaintiff was exercising ordinary care after going upon the track and before the collision. Indeed it is true no such condition is imposed thereby for the reason the proof did not call for it. Now it is certain, even though the driver'was negligent, a recovery is not precluded by this fact if the negligence of the moto'rman was subsequent thereto and was the proximate cause of the injury, for in such cases the law overlooks the plaintiff’s negligence which is remote, and determines the matter with reference to the proximate cause of the injury. It is the last omission of duty contributing proximately to the injury which determines the liability or non-liability therefor. [Beach on Cont. Neg. (3 Ed.), secs. 54, 201; Barrie v. Transit Co., 119 Mo. App. 38.] Now there is no proof in the case from which a jury could infer plaintiff’s negligence contributed or concurred proximately to the injury, after defendant either saw, or by the exercise of ordinary care, could have seen his situation of peril. Plaintiff’s driver may have been negligent in being upon the track, but in this situation, the question of due care on his part could only become material under the doctrine of the last clear chance, after defendant saw, or by the exercise of ordinary care might have seen plaintiff’s danger; for, of course, had he been guilty of any act of negligence after the defendant either saw or by the exercise of ordinary care might have seen, his situation of peril, and this act of neglect on his part operated proximately to the injury, then his neglect and not that of the defendant would have been
For the reasons given, the judgment will be reversed as to the defendant, United Railways Company, and affirmed as to the St. Louis Transit Company. It is so ordered.