157 Mo. App. 504 | Mo. Ct. App. | 1911
— This is a negligence case. An automobile in which plaintiff was a passenger for- hire “was struck at a street crossing by an east-bound electric
The answer is a general traverse. A trial in the cim cuit court resulted in a verdict and judgment for plaintiff in the sum of fifteen hundred dollars and the cause is before us on the appeal of defendant.
The' injury occurred late in the afternoon of July 11, 1908, at the intersection of Twelfth and Central ■streets. Plaintiff is a lawyer practicing his profession in New York City, belongs to Tammany Hall and, together with -other members of that organization, attended the Democratic National Convention held in Denver in July, 1908. Realizing that arid wastes were to be traversed, necessary supplies were carried on the journey but on the return trip via Kansas City, no liquid sustenance stronger than mineral water was •served after the train emerged from the alkaline stretches of Western Kansas. A stop-over in Kansas City of
Riding in the open air engenders thirst and on their return from “doing” the boulevards, a stop was made-at the Baltimore hotel where all alighted, went to timbar and each took one drink. All. chose beer as the best thirst-quencher except plaintiff and the chauffeur who-stuck to mineral water — a drink that neither cheers-nor inebriates. Finding they still had some spare time, a suggestion was offered and adopted that they ride-around to Convention Hall and view the place where-Mr. Bryan was nominated for the presidency in 1900. It must be confessed that the route followed in reaching-the building was devious, but we give little weight to-that fact and for the purposes of the demurrer to the evidence, which counsel for defendant contend should have been given, accept as true the testimony of the seven that individually and collectively they were sober, quiet, and well-behaved and were not intoxicated and disorderly as some of defendant’s witnesses describe their condition.
No doubt the recollection of the consequences following the stirring scenes enacted in that building in the fateful year of 1900 made them all feel sober, and careful, too. Ftom Convention Hall the automobile turned north on Central street and proceeded towards the crossing under consideration. There is much conflict in the evidence over the character of the automobile and its speed as it neared the crossing. According to witnesses for defendant “not lighter does the swallow skim along the smooth lake’s level brim,” than did the.machine glide
There Avas no obstacle to prevent the motorman seeing the automobile or the chauffeur from seeing the street car. It is conceded the chauffeur approached the ■crossing without altering the speed of his car and it appears to us that he depended on the. care of the motorman for the safety of his passengers. His confidence was misplaced for, according to the evidence of plaintiff, the •street car came on without slackening speed and the motorman did nothing to avert a collision. The street •car struck the automobile squarely in the side and pushed it along the track until the car stopped. ■ Just before the collision the motorman sounded the gong and began stopping-the car. The collision hurled plaintiff to the pavement and he was severely injured. The witnesses do not agree on the subject of the distance of the street car from the-place of the collision at the time the chauffeur
We think the trial court committed no error in-overruling the demurrer to the evidence. Of the negligence of the chauffeur in running his passengers into-a perilous situation, there can be no question, but plaintiff was a passenger of the chauffeur, had no control’ over the automobile and was thrown into danger with- - out an opportunity to save himself or even to object to-the conduct of the chauffeur. The negligence of the-chauffeur cannot be imputed to plaintiff and if it could' or if it appeared, as it does not, that plaintiff negligently-suffered himself to be entrapped, still the evidence very strongly tends to support the contention of plaintiff that-the motorman, after he realized the danger or should’ have realized it, negligently failed to employ the means.under his control which, if reasonably used, would , have-prevented the injury. The inference is strong that had the motorman done what he says he did, viz., applied the-brakes when he first saw the danger, the car then from, fifty to sixty feet away from the place of collision,, would have been stopped in that space, or, at least, its-speed would have been so materially reduced that the-automobile would have cleared the crossing. The evidence of the plaintiff tends to show that the motorman did nothing towards stopping until the instant of the-
We find only one error in the instructions given at the request of plaintiff. On the measure of damages the court instructed the jury “to take into consideration the character and extent of his injuries, if any, together with a reasonable loss of time on account of said injuries, not to exceed in value $3000 and his reasonable expenses for medicines and medical attention, if any, not exceeding three hundred dollars, and you may find for him in such sum as in the judgment of the jury will be a reasonable compensation for the damages thus sustained, not to exceed the sum of $10,000, the amount claimed in the petition.” Plaintiff’s left arm was broken near the wrist, his chin and left knee were severely bruised and abraided and he had other minor bruises and scratches. He was taken to a hospital where surgeons dressed his wounds and in three or four days he returned to his home. His family physician took him in charge and treated him until his recovery. His outlay for doctor, hospital and drug bills amounted to about three hundred dollars, and his evidence tends to show these expenses were reasonable. He states that he “lost the best part of every day for the next two months after the accident”
But must we say it was prejudicial? The verdict was for $1500, and it covered all the elements of plaintiff’s damage. Manifestly the jury did not believe plaintiff had been damaged in the sum he claimed in his testi-mony for lost time and we find a very good reason for such conclusion in the testimony of plaintiff elicited on cross-examination. The lost time occurred in the summer vacation during which law business is at its lowest ebb in New York. Lawyers of the $1000-a-week type, at the .'beginning of that period, usually turn the office over to the clerks and go to Europe, to Atlantic summer resorts and sometimes, though rarely, penetrate into the
On condition that within ten days plaintiff, shall enter a formal remittitur of five hundred dollars, the judgment will be affirmed; otherwise it will be reversed and remanded.