166 Mo. App. 131 | Mo. Ct. App. | 1912
— Plaintiff was a fireman in the employ of the Kansas City fire department, and defendant is the operator of a street railway in that city. Plaintiff was injured by being struck by one of defendant’s cars, and brought this action for damages. He recovered judgment in the circuit court.
The first objection to the judgment, that plaintiff sat on the wagon seeing the car and “watched and waited for it to run up and hit him,” is put much too strong for the facts as stated by the plaintiff. He did sit on the wagon and saw the car coming, but not to “hit him,” for he all the time supposed it would stop, and when he saw no movement made to stop, he called to the motorman. It was then too late for him to jump from his high seat; he stated his only place to jump would have been on the track in front of the car.
The natural question follows, why did he suppose the car would stop? We think a good reason was shown. Pie, his fellow firemen and his great wagon of forty-five feet length, were in plain view, and it is common knowledge that fire wagons have paramount right of way, which every one concedes. When one is known to be approaching, footmen scurry to safety, vehicles get to one side and street cars stop. But in this case an ordinance was pleaded and proved requiring street cars to stop; and it was shown in evidence that they customarily did stop. Defendant objects to the right to show a custom when it was not pleaded. Custom, like many other words, may vary in its meaning with the connection in which it is used. In this instance, proving that cars customarily stopped, or that it was their custom to stop, was merely proving their general observance of the ordinance and thus showing that plaintiff not only had a right to rely upon the ordinance and that it would be obeyed, but that it had actually always been obeyed. This was
Objection, we think too critical, is made to the hypothetical question as to the distance in which a car could have been stopped, going at the rate of ten miles an hour, as the one in controversy was. We do not think there was any valid objection pointed out, when the mátter is viewed from a practical standpoint. The witness was familiar with the grade and he was asked in what distance the cars which were run on that line, running at the rate of ten miles an hour, could be stopped. We judge from the objection that the question should have been made to apply only to the particular car which struck the wagon. If so, it would be rare that evidence of this nature could be produced for a plaintiff in cases of collision with cars. If there was any peculiarity about this car from those in general use on that line, defendant could have made it the basis for cross-examination, or evidence in its own behalf.
The next objection relates to instruction No. 1, in that it calls special attention to particular portions of the evidence in plaintiff’s behalf. We think it does not do so in the sense complained of. It merely submits the hypothesis of facts upon which plaintiff’s
It is then claimed that the instruction conflicts with defendant’s on the matter of contributory negligence. But we find the instruction is right and whatever of wrong there was is found in defendant’s instructions three and nine. Giving them was error in defendant’s interest and, of course, it cannot complain.
Complaint is made of an instruction on the measure of damages limiting the damages to pain and suffering already endured “and such as he is reasonably likely to suffer therefrom in the future.” Defendant insists the word “certain” should have been used instead of “likely.” We think the objection has no substantial merit. [Illinois Cent. Ry. v. Davidson, 76 Fed. Rep. 517; Scott Twp. v. Montgomery, 95 Pa. St. 444; Curtis v. Railroad, 20 Barb. 282.]
In Devoy v. St. Louis Transit Co., 192 Mo. 197, an instruction using the words “reasonable probability” was approved, and so is that expression justified by the remark of Judge Valliant in Reynolds v. Transit Co., 189 Mo. 408, 422.
The last objection is that the verdict of $1500 was excessive. We have examined the evidence in connection with defendant’s suggestion, and find the amount justified.
The verdict being for plaintiff, we must assume the evidence in his behalf to be the facts in the case, and in that view defendant has no standing in this appeal. Here was a large unwieldy fire wagon on the track, and defendant’s car bearing down upon it, with every opportunity to stop, and did not do so. If the facts are as the-evidence for plaintiff tends to show them, the conduct of defendant’s servants in charge of the car was without excuse.
The judgment is affirmed.