116 Mo. App. 673 | Mo. Ct. App. | 1906
This is an action for damages done to plaintiff, his wagon, harness and some vegetables in the wagon, by the alleged negligence of an employee of the defendant company. Plaintiff was engaged in selling vegetables from a market wagon and, at the time of the accident, this vehicle was standing on the south side of Kossuth street a few feet west of its intersection with Peck street. Kossuth street runs east and west and Peck street north and south. Plaintiff had just come out of a store on the northwest corner of the two streets and was standing on the' footboard of his wagon, when another wagon was hurled against his and the damage complained of done. The other wagon belonged to the St. Louis Transfer Company. It was being driven south on Peck street and just as it entered Kossuth street, the driver saw defendant’s car approaching from the east on the north railway track which runs along Kossuth. On perceiving the car the driver of the transfer wagon swung around to the northwest, intending to turn off the track on the north side of Kossuth street. Other vehicles, including plaintiff’s, standing at the northwest comer, prevented him from doing this, and he then attempted to drive across the track in a southwesterly direction. While doing so the street car ran into his wagon and threw it against plaintiff’s wagon, thereby causing damage.
The charge of negligence is that the motorman on the car saw, or by the exercise of ordinary care could have seen, the St. Louis Transfer Company’s wagon in a position of peril and could, by the exercise of ordinary care, have stopped said car, or slackened its speed, in time to avoid colliding with the transfer company’s
The action originally was against the St; Louis Transfer Company as well as against the St. Louis Transit Company, and the petition accuses the transfer company’s driver of carelessly driving so near the track of the transit company as to cause his wagon to be collided with by the car and thrown against the plaintiff’s.
The jury found a verdict for the transfer company, bnt found in favor of plaintiff against the transit company, assessing his damages at $800.
The accident occurred about nine o’clock in the morning. Kossuth street is forty feet wide between the curbs and is traversed by two street car tracks. Peck street is forty feet in width, including the sidewalks, and is down grade for a short distance from Kossuth to its intersection with the latter street. Kossuth is likewise slightly down-grade where the streets cross. The driver of the transfer wagon-approached Kossuth street,
An ex-motorman testified that under the conditions testified to in evidence the car could have been stopped, if it was going at a speed of fifteen miles an hour, in a distance of from sixty-five to eighty-five feet; and by us
Defendant appealed from a judgment in favor of plaintiff.
. Four assignments of error are made, all relating to some instructions given by the court. The first instruction given at plaintiff’s request, is complained of on the ground that it submitted a question of law to the jury, in telling them that if the motorman negligently caused the car to strike the transfer company’s wagon and throw it against plaintiff’s wagon, thereby doing damage, plaintiff was entitled to recover. It is said the court should have told the jury what acts constituted negligence and have left to them the finding of the facts and not the law. The rule invoked on this point is sound and the court fully complied with it. The jury were not instructed that a mere finding that the motorman negligently caused his car to strike the transfer wagon, would justify a verdict against the transit company. In two other paragraphs of the instruction the jury were required to find the particular negligence which authorized a verdict against the appellant, to-wit; that if its motorman, by keeping vigilant watch could have seen the peril of the St. Louis Transfer Company’s wagon, and, thereafter, by ordinary care, could have averted the collision by controlling and stopping his car, and he failed to exercise care in those respects, and his failure directly contributed to cause the collision and the plaintiff, at the time, was himself in the exercise of ordinary care, respondent was entitled to recover against appellant. The first instruction required the jury to find, in order to return a verdict against appellant, that the motorman was guilty of negligence in the particulars named and that such negligence directly contributed to the damage plaintiff sustained.
The third instruction given at plaintiff’s request is complained of because it told the jury that if the speed of the car was in excess of ten miles an hour, such a
It is argued that the twelfth instruction was erroneous because under it, if the jury found appellant had been guilty of negligence in failing to use care to stop the car after discovering the peril of the transfer company’s wagon, or in running at an excessive speed, as explained in instructions 1 and 3, a verdict was authorized against appellant alone, without reference to the fact that the transfer company’s driver might have contributed to cause the accident by carelessly driving on the track in front of the car. In instructions 10 and 13 the jury were fully advised as to' what acts of negligence on the part of the transfer company’s driver would make that company liable. Instruction 13 was a counterpart of instruction 12, and told the jury that if the driver of the transfer wagon had been guilty of the negligence charged against him and that negligence was the sole cause of the accident, the verdict should be against the transfer company alone and in favor of appellant. We think there was no chance for the jury to be misled in any way by instruction 12. It exonerated the transfer company from liability only in case the jury found the motorman’s negligence was the sole cause of the accident.
Complaint is made of the fourth paragraph of the instruction on the measure of damagés, which directed the jury to allow damages for permanent injury to
The judgment is reversed and the cause remanded.