Petersen v. St. Louis Transit Co.

| Mo. | Nov 21, 1906

BRACE, P. J.

This is an action for damages for personal injuries, in which the plaintiff obtained judgment below for $5,000, and the defendant appeals.

About 11 o ’clock on the morning of the 29th of December, 1901, the plaintiff, then a minor, aged about sixteen years, was in a close covered storm buggy, drawn by one horse, driven by his uncle Ole Petersen, going in an easterly direction on Clark avenue between 21st and 22nd streets, in the city of St. Louis, when the buggy was run into and struck from behind by one of defendant’s cars, going in the same direction, causing the horse to run away and throw the plaintiff upon a pile of rocks on the sidewalk in Twenty-first street, whereby his skull was fractured, the right eye so injured as to destroy its vision, and he was otherwise injured.

The petition alleges that his injuries were caused by the negligence of the defendant’s servants in charge of the car. The specific acts of negligence charged are, in substance, a breach of the vigilant watch and speed ordinances, a reckless and unlawful rhte of speed, failure to give any warning signals, and to exercise ordinary care to- prevent the collision!

The answer was a general denial, with a plea of contributory negligence, upon which issue was joined by reply.

At the close of the plaintiff’s evidence the defendant demurred thereto, and, upon the demurrer being overruled, introduced its evidence in defense, and at the close of all the evidence renewed its demurrer; and the first question presented for determination is whether upon all the evidence the court erred in submitting’ the case to' the jury.

I. The evidence for the plaintiff tended to prove that he was a young Dane who had been in this country only about three months, who could not speak the English language and had to be examined through an interpreter; that the buggy and horse were owned and being driven by his uncle, Ole Petersen, a citizen of mature years, doing business on Clark avenue; that Clark avenue is a narrow street running east and west, about thirty feet wide between the sidewalks; that defendant had a single track in the center of the street, occupying a space of about six feet of its width and leaving a space of about twelve feet on either side; that on its track cars were run but one way, from west to east; that Twenty-first, Twenty-second and Twenty-third streets run north and south, crossing Clark avenue at right angles in a densely populated part of the city; that the width of these streets is between fifty and sixty feet, and the length of the blocks on the avenue between them is about three hundred feet; that Ole Petersen drove the buggy south on. Twenty-second street to its intersection with Clark avenue, looked west, as did his nephew, the plaintiff, and, seeing no approaching car within the distance of a block, turned' east on Clark avenue and drove down that street in a walk or slow trot close to the north rail o.f the track, and as he was in the act of crossing the track diagonally some forty or fifty feet east of the crossing the horse and buggy were struck by defendant’s car going east, which ran about one hundred.feet further before it stopped; that neither the plaintiff nor his uncle looked back behind them for an approaching car after they turned east on Clark avenue; that the maximum rate of speed prescribed for street cars was eight miles per hour; that the car was going at a speed of thirty or forty miles an hour; that no bell was rung, gong sounded nor any other warning of its approach given.

The evidence for the defendant tended to prove that the car was going- at a speed of from six to twelve miles an hour and that the bell was being rung as the car approached Twenty-second street; that the track, was straight and an approaching car going east could be seen at a distance of from six to eight blocks. The motorman, a witness for the defendant, testified that he first noticed the horse and buggy just after he crossed Twenty-third street going east; the buggy was turned east from 22nd street on Clark avenue and was between the track and sidewalk, the horse going in a trot or walk; that the car was running at the rate of twenty miles an hour; that as soon as the buggy came in sight he began to slow down by applying the brake, thinking the driver intended to cross the track, and when at the crossing of Twenty-second street he was running “probably 6, 7 or 8 miles” an hour; that at the speed he was then going the car could have been stopped in from ten to fifteen feet; that he noticed that the buggy was on the track in front of his car some twenty-five or thirty feet distant when he was on Twenty-second street about east of the crossing; that he gave the brake another turn, but rang no bell and did not reverse until within three or four feet of the buggy, and the car did not stop after the collision until it ran about 90' feet.

It is contended for the defendant that the demurrer to the evidence ought to have been sustained because the occupants of the buggy when it reached Clark avenue by looking west on that street could have seen a car approaching for a distance of six or seven blocks, and as they did not look that far west for an approaching car bnt only as far as a block, and, seeing no approaching car, entered upon that street, they were guilty of negligence; and because after they entered upon the street and were driving diagonally across it some forty or fifty feet beyond the crossing they did not look behind them for an approaching car before .the buggy went on the track, they were guilty of negligence.

The law imposed the duty upon the defendant’s servants in running its car upon Clark avenue to run them at a rate of speed not to exceed eight miles per hour, and to keep a vigilant watch for all vehicles and persons either on the track or moving towards it, and on the first appearance of danger to stop the car in the shortest time and space possible. Ole Petersen, a citizen of St. Louis, and for many years a resident thereof, had a right to assume when about to drive onto Clark avenue at the Twenty-second street crossing that defendant’s cars were being run thereon in obedience to these, legal requirements, and when he looked to the west, the only direction from which a car was to be expected, and saw no car approaching within a block, there was no apparent danger in driving onto the street, turning to the east and pursuing his way along the street, and he was guilty of no negligence in so doing. In turning into the space between the curb of the sidewalk and the north rail of the track the head of his horse must have been very near that "rail and the whole outfit in plain view of the motorman, whose duty it was to be on the lookout for a vehicle in that situation. Thereafter the movement of the vehicle was in front of the car and toward the track in plain view of the motorman until it was struck, about fifty feet from the crossing. The motorman admits that he saw the vehicle when he was at the Twenty-third street crossing. It was then in front of him at the Twenty-second street crossing and distant from him about 300 feet, moving as indicated. He admits that he was then running at a speed of twenty miles an hour, but, seeing the situation of the vehicle, applied the brake, and when he reached the Twenty-second street crossing the car was going only 6, 7 or 8 miles an hour. That he did not ring the bell when he saw the buggy coming towards the track, but when about east of Twenty-second street crossing, noticing that the buggy was on the track ahead about twenty-five or thirty feet from the car, he gave the brake another turn and when within three or four feet of it and when the collision was inevitable reversed the power, and this was all he did to prevent it, although, according to his own testimony, he ought to have stopped the car at the speed he was going within a space of ten or fifteen feet. We know of no inexorable rule of law that requires a traveler in a closed vehicle going along a public street of a city on which a street railroad track is laid to look behind him for an approaching car, of which he has no warning and of the proximity of which he has no knowledge, every time his horse or vehicle may be about to go on, along or across the rails of the track.

Whether he has been guilty of negligence in going on or over those rails in such case is' a question to be determined by the jury under all the circumstances of the case. But conceding that Ole Petersen was negligent in permitting his horse and buggy to go upon the rails, without looking behind for an approaching car, and leaving out of view all the evidence of the plaintiff’s witnesses of the unlawful and reckless speed at which they testified the car was running, still, according to the testimony of the motorman, the defendant’s own witness, the car ought to have been stopped in time to have prevented the collision, after he discovered the perilous position in which the vehicle was; his evidence tended to prove that he could have stopped the ear and prevented the collision by the exercise of proper care after he discovered the perilous position in which the vehicle was. And this of itself was sufficient to take the case to the jury, even if Ole Petersen had been the plaintiff in the case. [Rapp v. Railroad, 190 Mo. 144" court="Mo." date_filed="1905-06-28" href="https://app.midpage.ai/document/rapp-v-st-louis-transit-co-8015476?utm_source=webapp" opinion_id="8015476">190 Mo. 144, and cases cited on page 161.] But he was not, and the status of the plaintiff in the buggy was not that of his uncle — he was a mere passenger in the buggy exercising no control whatever over its management or movements, and, having no right or power to do so, and upon a principle well recognized in this State, the negligence of Ole Petersen, if any, could not be attributed to him, for, as we have said, it is against both reason and authority that an innocent person should be made responsible for the wrong act of another over whom he has, and exercises no control, and who is neither his servant, nor his agent. [Becke v. Railroad, 102 Mo. 544" court="Mo." date_filed="1890-10-15" href="https://app.midpage.ai/document/becke-v-missouri-pacific-railway-co-8009942?utm_source=webapp" opinion_id="8009942">102 Mo. 544; Sluder v. Railroad, 189 Mo. 107" court="Mo." date_filed="1905-06-01" href="https://app.midpage.ai/document/sluder-v-st-louis-transit-co-8015431?utm_source=webapp" opinion_id="8015431">189 Mo. 107.

The court committed no error in overruling the demurrers to the evidence.

H. -The case was submitted to the jury upon twenty-seven instructions, and for the defendant it is contended the judgment ought to be reversed on account of the multitude of the instructions. While it is not specifically stated in the abstract which of these instructions were given at the • instance of the plaintiff and which at the instance of the defendant, it does inferentially appear on the face of the instructions and the motion for a new trial that those numbered 1 to 10 inclusive were given for and at the instance of the plaintiff, and those numbered from 11 to 27, inclusive, were given for and at the instance of the defendant. Besides these, the defendant asked for three other instructions which were refused. So that, besides the instructions in the nature of demurrers to the evidence, the defendant asked for twenty other instructions, seventeen of which were given, and now complains , of the multitude of the instructions. It does not lie in its mouth to make such a complaint. The defendant also complains of some of its own instructions on the theory of modifications thereof by the court, but no such modifications appear in the abstract and it is in no position to make such a complaint. No complaint is made of the action of the court upon the refused instructions, and the defendant’s instructions may be dismissed without further notice. Of the ten instructions given for the plaintiff, the 4th was a definition of ordinary care, the 5th upon the measure of damages, the 6th upon the burden of proof, the 9th upon the form of the verdict and the 10th on the credibility of witnesses. We find no substantial error affecting the merits of the case in any of these instructions. The other instructions upon which the main issue was submitted to the jury are as follows:

“1. The court instructs the jury that it was the duty of the defendant railway company in operating the car mentioned in evidence in this case on Clark avenue in the city of St. Louis to exercise ordinary care to avoid coming in contact with the buggy mentioned in evidence when the same was on the track or in such proximity thereto as to be in danger of being hit by a car running on defendant’s track; and if you believe and find from the evidence that the collision between the car and the buggy in which the plaintiff, Hans, was riding was occasioned by the omission of the motorman in charge of the movement of defendant’s ear to use reasonable care to avoid a collision with said buggy, and that because of such want of care the collision took place, and as a direct consequence thereof the horse attached to said buggy ran away and became unmanageable, and that as a direct result of said facts plaintiff, Hans, received the injuries mentioned in evidence, and that the plaintiff, Hans, personally, at and before the events above described, exercised ordinary care to avoid injury, and danger, then your verdict should be for the plaintiff.

“2. The court instructs the jury that if you believe from the evidence that the buggy was going east along Clark avenue in a course so near the railway track as to be in a position to be hit by defendant’s car running on said track, and that the motorman in charge of the movements of said car could, by the exercise of ordinary care on his part, have observed said course of the buggy, and could have stopped or checked said car so as to avoid hitting the buggy; and if you further find from the evidence that said motorman neglected to use such ordinary care to observe said buggy or to check said car so as to avoid hitting the buggy, and that because of said neglect the car ran into the buggy and thereby caused the horse to run away and throw plaintiff out of the buggy to his injury, and the plaintiff, Hans, personally used ordinary care to avoid danger and injury at and before said collision and up to the time when he was injured, then your verdict should be for the plaintiff, even although you may believe from the evidence that the driver of the buggy, Ole Petersen, failed or omitted to use ordinary care to notice the approach of the car or to avoid a collision with the car.

“3. The court instructs the jury that the plaintiff, Hans, is not answerable or responsible in this case for any want or omission of care on the part of Ole Petersen in respect to looking or listening for an approaching car or in respect of the management of the horse or buggy mentioned in the evidence; and if you believe from the evidence that the plaintiff, Hans, himself used ordinary care to avoid danger and injury, at and before the collision and up to the time when said plaintiff was injured, then you should find in favor of plaintiff, Hans, on the issue of his alleged negligence.

“7. The court instructs the jury that if you believe from the evidence that the collision between the defendant’s car and the horse or buggy was caused by the negligence, that is to say, the want of ordinary care, on the part of the defendant’s agent in charge of the movements of said car, in any of the particulars mentioned in the other instructions, and that said collision caused the horse to run away, and that plaintiff, Hans, was thereafter thrown out of the buggy, without any omission of ordinary care for his own safety; and' that he was thrown out and was injured as a natural and direct result of the running away of said horse, and of said collision, then the said injury to plaintiff was a direct consequence or result of said collision, as mentioned in the other instructions.

“8. The court instructs the jury that if they believe from the evidence that after the buggy or the horse mentioned in the evidence was going in a course so near the track as to be within striking distance of. the approaching car of the defendant on Clark avenue, the said car was then far enough distant from the said buggy to have been stopped by the motorman in charge of the movements of said car by the exercise of ordinary care on his part in observing said horse and buggy and in the use of the appliances at his command on said car, and that said motorman failed or neglected to use such ordinary care and in consequence of said neglect the car hit the horse or buggy, and that as a direct consequence of said collision the horse ran away and the plaintiff, Hans, received the injuries of which he complains, then the jury should find for the plaintiff. ’’

These instructions presented the case very fairly and clearly to> the jury, and we fail to find in them any material error prejudicial to the defendant, affecting the merits of the case. Although they may not come fully up to the standard of perfection required by the criticisms of defendant’s learned and ingenious counsel, yet as upon the whole of the evidence the verdict was manifestly for the right party — we cannot for that reason reverse the judgment thereupon. [R. S. 1899, secs. 659, 865.] Those criticisms have been sufficiently answered in the brief of counsel for plaintiff and need not be reviewed here.

III. It. is finally contended that the judgment ought to he reversed because “there is no verdict in the case such as is contemplated by law. ’ ’

The verdict was signed by nine jurors but because the first juror who signed his name attached the word “foreman” to his signature, it is contended that the verdict was not that of the nine jurors who signed it. The statement of this proposition is a sufficient refutation of it.

Finding no error in the trial of this cause, calling for a reversal of the judgment of the circuit court, the same is affirmed.

All concur except Graves, J., not sitting.