108 Mo. App. 424 | Mo. Ct. App. | 1904
(after stating the facts). — 1. Defendant assumes from the environment, plaintiff’s evidence shows surrounded him, that the west-bound car so obstructed his view that plaintiff could not see the east-bound car and it was his duty to have held his horses until the west-bound car had passed a sufficient distance west to enable him to see whether or not there was a car- approaching from the west. The assumption may be correct, though it is not supported by plaintiff’s evidence. He said the west-bound car was an open one and he could see through it, if so, then it was not such an obstruction as to entirely cut off his view from the south track, it being shown that the street lamps were burning at the time. Plaintiff testified positively that he looked west and could see one hundred and eighty feet in that direction along the south track, and that he saw no car coming from the west. If the car was running twenty or thirty miles per hour, it is not impossible that plaintiff, when he started to cross the street, looked one hundred and eighty feet west and did not see the car, for .the reason it was probably a greater distance than one hundred and eighty feet west of him at the time. The physical facts, therefore, are not conclusively shown to be such that if plaintiff
“2. If you find from the evidence that defendant ’s motorman was running said car at a rate of speed in excess of ten miles per hour at the time, and just prior to the collision with plaintiff’s horses and carriage and that said excessive rate of speed was the direct and proximate cause of the collision and consequent damages to plaintiff and his property; and if you further find from the evidence that plaintiff before going on the east-bound track looked and listened for an approaching car and neither saw nor heard one and that plaintiff exercised ordinary care in approaching and driving on to defendant’s said track, then your verdict must be for the plaintiff.”
For the defendant, the court gave twelve instructions presenting the law of contributory negligence in every possible phase that the evidence warranted. Defendant complains that the court modified some of its instructions before giving them and refused . others that it asked. There is no valid ground for this complaint. The court was not only liberal in the number of instructions given for the defendant, but was also
We bave been unable to discover any reversible error in tbe record and affirm tbe judgment.