81 Mo. App. 25 | Mo. Ct. App. | 1899
This is an action to recover damages for personal injuries in which there was a trial resulting in judgment for plaintiff and defendant appealed.
At the conclusion of all the evidence the defendant interposed a demurrer thereto which was by the court denied and the propriety of the action of the court in that regard is the question now before us for consideration. It appears from the evidence that the defendant operates a street railway line over and along Daugherty street in Webb City. It further appears that the said city, just before the time of the plaintiff’s injury, had deposited certain sidewalk material, consisting of brick and sand, on the south side of said street between Eoan avenue and Oronogo street. The space between these obstructing materials and the south rail of the defendant’s railway track was from twelve to fourteen feet. On the day of plaintiff’s injury he was driving in a jog trot a quiet old mare, attached to a cart, westerly along the south side of Daugherty street and when he reached the place where the passway along said street was narrowed by the deposit of said sidewalk materials, he met coming east one of defendant’s cars. The plaintiff’s
Some of plaintiff’s witnesses testified that his mare was not frightened but “only shied off to get away from the wind of the moving car.” The plaintiff contends that as the current of air which frightened his mare was caused by the unlawful speed of defendant’s car, therefore such unlawful speed was the direct cause of the injury. Without stopping to consider whether or not the unlawful speed was the direct and proximate cause of the injury it is a sufficient answer to the plaintiff’s contention to say that it was not shown directly or inferentially that had the speed of defendant’s car been only ten miles an hour, its lawful speed, no atmospheric current would have been thereby created.
It may be that the defendant’s car was being run at an unlawful rate of speed, though there is much very persuasive
The judgment .will accordingly be reversed.