Slezak v. St. Louis Transit Co., 142 Mo. App. 693

142 Mo. App. 693 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — We have read the evidence as abstracted by defendant’s counsel, in connection with the assignments of error relied on. These assigned errors are, (1) that there is no evidence in the record that the motorman could, by the exercise of ordinary care, have avoided the collision after the danger became apparent; (2) that there is no certain testimony of persons qualified to speak as to the rate of speed of the car; (3) that the verdict is the result of passion and prejudice; (4) that it was reversible error to have permitted, over objection, a witness, who was neither qualified either by training or by observation so to do, to give his opinion ©n the speed of the car; (5) that plaintiff’s first instruction was erroneous, and, finally, that the court erred in refusing defendant’s third instruction, because the charge that the car was being run at a reckless rate of speed was untrue and should therefore have been withdrawn from the jury.

As to the first point made, that there is no evidence in the record that the motorman could, by the exercise of ordinary care, have avoided the collision, after the danger became apparent, it is sufficient to say that there was evidence tending to support such a finding and that this assignment is not well taken.

Nor is the proposition that there is no certain testimony of persons qualified to speak as to the rate of speed of the car sustained by the record. While it is true that only one of the witnesses, Brady, testified to having previously timed cars running in the city,' and that that witness testified that he had only done so on one occasion, his testimony, as well as that of the other witnesses, was to the effect that they were familiar with the running of cars in the city of St. Louis, and had frequently observed them, and they testified that their estimate of speed was based on their observations. The action of the trial court, in allowing the witness Brady to testify as to his estimate of the speed of the car, was within the sound discretion of the court on the evidence which was brought out as to Brady’s qualification and is not such an abuse oí the discretion of the court as warrants interference by this court with that action. The action of the court in admitting this testimony, in no manner is in conflict with the ruling on that matter made in Stotler v. Railroad, 200 Mo. 107. On the contrary we thmk it was in line and in entire harmony with the law as there laid down.

We cannot say, in reviewing the testimony in the case, and considering the nature of the injuries to plaintiff and their extent and duration, that the verdict is the result of passion or prejudice. There is testimony to the effect that he had lost wages for nearly two years and that his daily wage, before the accident was §3.50. He was put to expense and he is entitled, over and above these items to compensation for his sufferings, as well as for the impairment of his earning capacity. In the light of this evidence, we cannot declare that this verdict is either excessive or that it shows evidence of passion or prejudice on the part of the jury. The second instruction given at the instance of plaintiff, correctly directed the jury as to the measure of damages and, in our opinion, the verdict is warranted by the testimony and responsive to that instruction.

Error is assigned to the giving of the first instruction at the instance of plaintiff. The particular error assigned to this instruction is the use of the expression, to the effect that if the jury found that the motorman failed “to keep a vigilant watch” for vehicles on the track, etc., plaintiff can recover. The contention is that the instruction should merely have required the motorman to exercise ordinary care in looking and watching for plaintiff. As we understand the decision of the Supreme Court in Schmidt v. St. Louis R. R. Co., 149 Mo. 269, there was no error in the use of the words, “vigilant watch,” in this instruction, when taking the instruction in full, particularly so, when considered in connection with the instruction as to ordinary care, as defined in plaintiff’s third instruction.

Nor can we agree with the fifth proposition of the defendant that it was error to refuse the defendant’s third instruction. There was evidence in the case as to the speed at which the car was running and much conflict of evidence as to that, but it cannot be said that the charge of a reckless rate of speed, was either unproved or had been abandoned by the plaintiff. Furthermore, this third instruction, as asked, was defective and would have been confusing, in that it failed to define to the jury what would have been considered a high and reckless rate of speed under the circumstances of the case.

On a review of all the evidence in the case and the instructions given, we find no error that warrants us in saying that the case should be reversed. Counsel for appellant vigorously and earnestly assail the credibility of the Avitnesses produced by plaintiff. In the fourth instruction given at the instance of defendant, the jury Avas fully and carefully instructed as to the credibility of the Avitnesses. That question was accurately placed before the jury. The witnesses were before the jury. The jury heard and saw them, and, Avith this cautionary instruction, it was for the jury to determine what weight to attach to their testimony. On consideration of the whole case we fail to discover in it any reversible error, and the judgment of the trial court is affirmed.

All concur.