59 Mo. App. 668 | Mo. Ct. App. | 1894
This suit was begun before a justice of the peace to recover damages, caused to plaintiff’s delivery wagon by the alleged negligence of defendant’s servants in running a train of cable cars against it. The case was tried before the justice, and judgment given for plaintiff: for $40, from which an appeal was taken to the circuit court, where plaintiff again had judgment for the same amount, from which an appeal was taken to this court.
On the trial the plaintiff gave 'evidence tending to show that in January, 1892, it was a business corporation, and as such employed one John Larkin as the driver of its delivery wagon; that said driver in making deliveries stopped his wagon at a house on the corner of Lafayette and Texas avenue for the purpose of leaving a bundle; that, wrhen he returned to his wagon, he saw defendant’s train of cable ears, which had stopped at Jefferson avenue (one block east of said wagon), was beginning to start just as he climbed on his wagon; that he turned to go east, to do which he was compelled to cross defendant’s track, and to drive slowly on account of the snow on the ground; that the distance between the two blocks was three hundred feet; that, when the front wheels of his wagon got on the car track, he observed that the train of cars was
Defendant gave evidence tending to show that the gripman on its train of cars, when the same was in the middle of the block between Jefferson Avenue and Texas Avenue, saw the plaintiff’s wagon ahead of him about three or four feet from the track, going west; that the gripman tapped the bell a few times going along ;• that the driver of the wagon turned across the track at a point about fifteen or twenty feet from the grip car; that the brakes were applied when the wagon turned across the track; that, before the ear was stopped, it struck the wagon; that, on account of the condition of the track that day and its grade, the car could not be stopped in less than twenty-five feet.
The first point urged for reversal is, that plaintiff’s instruction in the nature of a demurrer to the evidence should have been given. Such an instruction is only warranted when neither the evidence as a whole, nor any legitimate inference therefrom, will sustain a finding for the plaintiff. It was properly refused in this case, since there was evidence offered by plaintiff tending to show that the gripman observed its wagon upon the track at a point seventy-five to one hundred and fifty feet distant, and that he might have stopped
Upon the theory thus arising upon the evidence of plaintiff, the jury under proper instructions might have found a verdict in its favor. Hickman v. Railroad, 47 Mo. App. 65; Smith v. Railroad, 52 Mo. App. 36; Sullivan v. Railroad, 117 Mo. 214.
Defendant next complains of the refusal by the court of the following instruction:
“The court instructs the jury that it was the duty of the person driving plaintiff’s wagon, before crossing defendant’s railway tracks, to look and listen for approaching railway cars; and, if you find from the evidence that the person in charge of plaintiff’s wagon failed to look and listen, and that by looking and listening he might have observed the approaching car in time to avoid a collision, and that by the exercise of ordinary care he might have avoided the collision, then you will find for the defendant, unless the servants of defendant saw, or by the exercise of ordinary care could have seen, the horse and wagon in time to have prevented the collision.”
The instruction in question was obviously copied from the one passed on by this court in the case of Hickman v. Railroad, supra. It was held in that case, that such an instruction should have been given in a suit for damages, caused by a collision against a street car line propelled by electricity. The same doctrine was affirmed in Smith v. Railroad, supra, where the action was, as in the present case, against a street car line propelled by a cable. It follows, therefore, that the ruling of the trial court in refusing the