81 Mo. App. 351 | Mo. Ct. App. | 1899
This suit is for personal injuries sustained by plaintiff while driving two horses bitched to a wagon in an eastwardly dbection over Lockwood avenue, when a car belonging to defendant and moving over its tracks in the same direction with plaintiff overtook and collided with bis wagon and team, it being alleged as tbe ground of defendant’s negligence tbat its car was going with unusu„al and negligent speed, and tbat its servants, after seeing tbe peril of plaintiff and bis property, bad full opportunity “to stop said car before striking or running into said wagon.”
Tbe defense was a general denial and a plea of negligence on tbe part of plaintiff directly contributing to bis injuries. There was a verdict and judgment for $1,500 in favor of plaintiff, from wbicb defendant appealed to this court.
.(1) Appellant complains of tbe overruling of its demurrer to the evidence, of certain instructions given -at respondent’s request and of tbe court’s own motion, and of tbe refusal of instructions requested by it.
Taking these assignments of error in order, tbe first
There was evidence which tended to show that on a night in July, 1898, the respondent with his stake wagon and team was returning to this city from a delivery of goods which he had been employed to make in the town of Kirkwood; that he entered upon a street known as Lockwood avenue, over which defendant’s street car track was laid, at the top of a hill adown which the road extended about 1,800 feet when it met another acclivity; that he had completed the descent of the first hill and had ascended about 200 feet upon the second hill when his team and wagon was struck by a car coming from the rear; that at the time of the accident plaintiff was driving eastwardly, two wheels of his wagon and one horse being within the rails, and the other side of his wagon and remaining horse being outside and between the south rail of the track and a curb line, which was about twelve feet distant; that within the space between the south line of the track and the said curb line telephone poles had been set so near the rail that plaintiff could not pass between the telephone poles and the passageway over the car tracks without coming within reach of the projection of a ear if one should pass while he was avoiding the post; that about 45 feet in the rear, plaintiff was followed by a buggy containing three men; that on account of being of less breadth than the wagon the buggy was being driven outside of the rails of the track; that the ear of defendant descended the hill behind thesé two vehicles at a rapid rate of speed, variously
The foregoing testimony was susceptible of the following logical deductions:
First. That the presence of plaintiff, together with his wagon and team, on the tracks of •the defendant’s car line ar the time of the accident was the result of negligence on plaintiff’s part. Secondly. That the fact of such negligence and the risk to which it had exposed plaintiff became known, or by ordinary care would have become known, to the motorman in charge of defendant’s car in time to have enabled him to prevent any injury, by ordinary care in the use of the means provided for controlling or stopping the movement of the car. Thirdly. That the motorman despite such knowledge, or opportunity of knowledge, made no effort to prevent a collision between his car and the wagon of plaintiff. Fourthly. That the immediate cause of the injuries consequent upon such collision was the neglect on the part of defendant’s representative to use the means at his command to arrest or stop the car.
(2) Appellant complains of the refusal of the court to give an instruction requested by it to the effect' that if plaintiff’s own negligence “directly contributed to bringing about the collision” there could be no recovery. The proposition of law contained in this instruction is correct, and it would have been error on the part of the court to have refused it, except for the fact that in the other instructions given for respondent and of the court’s motion and at the instance of appellant, the same proposition of law was stated to the jury in the explicit and legal sense which the previous discussion shows it bears.
(3) It is next insisted that the court erred in refusing appellant’s request to direct -the jury that the failure to ring the bell would not authorize a recovery. The petition does not allege negligence in that respect. Appellant adduced positive evidence that the bell was continuously rung by its motorman prior to the time of the accident. The tendency of the evidence for respondent on this subject was negative merely and was not objected to when introduced. While it is proper for the trial court to define the legal effect of evidence relied upon as a ground of recovery or as a complete defense to an action, the reason for that rule does not apply when the evidence, upon which the court is requested to pass, is not, of
(4) Appellant also complains of the refusal of an instruction requested by it to the effect that if the rate of speed of its car was so great that it could not have been stopped iu time to avert the collision after respondent and his vehicle might have been discovered by ordinary care on the part of its motorman, then a verdict should be returned for appellant. The fault in this instruction is that it assumed the car was not run- at a negligent rate of speed. “While it may be true that an unusual rate of speed is not negligence per se, it has never been held by .this, court that a train may not be run at such an excessive and reckless rate of speed as to constitute negligence. Whether the rate of speed at which a train is run, at any particular time, is of this character, is a question for the jury, from the evienee bearing upon the rate at which it.
(5) As to the instructions given for respondent, of which appellant complains, it is sufficient to say that they were in consonance with the principles affirmed in this opinion.
Finding no reversible error in the judgment in this case, it is affirmed.