100 Mo. App. 374 | Mo. Ct. App. | 1903
This is an appeal by. defendant from a judgment of the circuit court of the city of St. Louis in favor of plaintiff for the sum of $3,700 for personal injuries of a grave and permanent character inflicted on him by a street car of defendant striking a car of the St. Louis Transit Company. The catastrophe occurred about 4 o’clock in the afternoon of January 25, 1902, at the intersection of the double parallel tracks of defendant on Union- avenue-, extending northwardly and southwardly across Delmar avenue, and the double parallel tracks of the Transit Company on Delmar avenue, running eastwardly and westwardly across Union avenue in the- city of St. Louis.
The plaintiff, in the performance of his duties in the employ of the Transit Company, was operating one of its cars as a motorman. The- petition charges that the Transit Company had the right of way -across the tracks of defendant at Union and Delmar avenues and it was the duty of defendant’s servants in charge of its cars to wait before such crossing until the oar of the
Defendant’s answer contained a general denial, and a general plea of contributory negligence, and further charged as specific acts of contributory negligence, that plaintiff so carelessly operated the Transit car as it approached, and went on the crossing that he caused it to collide with defendant’s car; that he caused and permitted it to come in contact with and collide with defendant’s car, by carelessly and negligently failing and omitting to look and listen for and watch defendant’s car, and to use ordinary care to prevent the collision, when by so doing he might have avoided it, that he negligently failed to- bring the Transit car to a stop before he ran it on the crossing, that the rules of the Transit Company, binding on plaintiff, provided that motormen
Some snow had fallen just prior to the casualty, but how heavily or whether it was then continuing, were-controverted. However that may be, at the time stated, a car of the Transit Company approached from the-west, moving eastwardly on the- south track, a slight down grade, and when about two- hundred feet west of Union avenue, its speed was reduced but its movement toward the crossing was continued. At the same time,, a ear of the Suburban Company drew near Delmar avenue from the- south, moving northwardly on the east track and when about one- hundred and twenty-five feet south of Delmar avenue, its speed was diminished but its progress towards the crossing continued, until it was about thirty or forty feet from the track of the- Transit Company. When the car of the latter started to cross the intersecting tracks of defendant and had gotten partly over, the Suburban car struck the- Transit car in front of its rear trucks west of the center of the latter car.
Plaintiff, on his own behalf, testified that when he first observed the Suburban car then about two hundred feet from the crossing, with the line of vision between unobstructed, he threw off the power, reducing the speed of his car to a rate, as he drew near Union avenue, not exceeding two miles per hour. That when he- first observed the defendant’s car, its motorman was nearly a block from the crossing and brought the car he was operating at about half rate of speed till within forty feet of the car of witness, when he further lessened the speed and then witness started his own car across at a speed of about two miles an hour, that he had observed
Defendant’s motorman testified that two or three inches of snow had fallen and at a distance of one hundred to one hundred and fifty feet he first observed the Transit car, that his own car was then acting all right and he then set his brakes which did not work, and the car began to slide from the snow on the tracks, and he then reversed the car but “she wouldn’t take contact” there was so much snow on the track and the wheels were spinning backward; that he was trying to bring the car to a stop fqr fear of a collision and he did not bring the car to a stop before he hit the other car, because it was sliding and he could not; that when his car arrived within twenty-five or thirty feet from the Transit oar, his power was reversed and his wheels were spinning backward but his car not going faster than before, and when he hit the Transit car, the latter was going about a couple of miles per hour; the collision stopped his car before it got on the Transit tracks, but the Transit car passed over the Suburban tracks before it stopped. This witness further stated that he remained at his post on his car until after the collision but did not remember which way, front or rear, he then got off, but he got off as soon as his car stopped, and went around to the Transit car; that the injuries sustained by his car consisted of the vestibule broken, the- dashboard bent, and the controller broken, and after the occurrence it was operated by its own power to the sheds. That he examined the Transit car and noticed nothing- broken but two windows. He admitted that the Transit ear had the right of way over the crossing and that he had been in the habit of stopping and letting them go by, and it was his intention to stop and let this car pass; that under the conditions existing on that day he could not
The conductor of defendant’s car in testifying, stated he first saw the Transit car when the latter was distant one hundred and fifty feet west of Union avenue; that his own car was then running more slowly than it had been; that defendant’s motorman was working the brakes and sand lever- without appearing to reduce the speed owing to the bad condition of the rail caused by the snow fall; that the car of the Transit Company came on from the west and reached the crossing before they did and at the time the cars collided, his oar was groins:
At tbe close of plaintiff’s evidence and at tbe close of all tbe testimony, defendant asked an imperative instruction to tbe jury to find a verdict in its favor, which tbe court refused. The court also' refused a series of instructions prayed by defendant, which will be considered hereinafter so far as deemed necessary, and instructed tbe jury as follows:
“1. It was the duty of tbe defendant company in tbe operation of its cars to use ordinary care to prevent collision and to observe that provision of tbe city ordinance which gives to tbe east and west-bound cars tbe right of way at intersecting points over north and southbound cars.
“It was at tbe same time the duty of tbe plaintiff in tbe operation of tbe east-bound car to exercise for bis own protection ordinary care to avoid a collision and notwithstanding his right of way — because of bis being on an east-bound ear — it was bis duty to avoid a collision if be saw danger ahead or in tbe exercise of ordinary care would have seen danger in time to have stopped his car or otherwise have averted tbe accident, and if you believe from tbe evidence plaintiff failed to exercise such care or perform such duty, and that such*383 failure in any way contributed, to Ms injury, then he is not entitled to recover.
1 ‘ 2. By £ ordinary care’ is meant such care as a person of ordinary prudence would under the same or similar circumstances exercise. The absence of such care is negligence.
“If, therefore, from the evidence you believe that the defendant company operated upon a public open street of St. Louis the car which collided with the car of the Transit Company and that in its operation at the time of the accident the defendant company, by its servants or employees in charge of said car, failed to give to the east-bound car the right of way, and negligently ran its car so as to collide with the east-bound car and that by reason of such collision the plaintiff was injured, and that he was himself at the time of the accident exercising ordinary care for his own protection as herein defined, then your verdict should be for the plaintiff.
" The burden of proving any negligence of defendant or failure to observe the city ordinance regarding the right of way is upon the plaintiff throughout the entire case to establish it by a preponderance or greater weight of the testimony. The burden of so proving any contributory negligence on the part of the plaintiff is upon the defendant.
“3. If your verdict is for the plaintiff you will assess his damages at such a sum as from the evidence • you believe will fairly compensate him for any injury of person which he has suffered by reason of the said accident, considering whether you believe any such injury is temporary or permanent: For any pain of body or mind which from the evidence you believe he has suffered or may suffer, by reason of the said accident: For any earnings which from the evidence you believe he has lost or may lose by reason of the accident; for any expenses for medicines or medical attention or care which you may believe from the evidence have been necessitated or may be required by him by reason of the*384 said accident considering the fair and reasonable value thereof.
“If your verdict is for the defendant you will simply so state in your verdict. ’ ’
5. Defendant finally contends that the instructions improperly permitted the jury to take into consideration expenses for medicines or medical attention, but the testimony of the plaintiff was that he was in a hospital of his own choice after he left the first hospital to which he was transported by the Transit Company immediately after the casualty, and that he had incurred and paid for medical treatment. Gorham v. Railroad, supra.
The issues in this cause, under the pleadings and evidence, were clearly presented and in nowise complex, the instructions were commendably comprehensive, lucid and concise and the judgment is affirmed.