O'Neill v. St. Louis Transit Co.

83 S.W. 990, 108 Mo. App. 453, 1904 Mo. App. LEXIS 65

• Court: Missouri Court of Appeals
• Decided: November 29, 1904
• Status: Published

Opinion

GOODE, J.

(after stating-the facts). — Instead of the evidence showing without conflict that the plaintiff was guilty of contributory negligence in driving across the Olive street car tracks at a high and reckless speed, Ms own testimony, which was borne out by other witnesses, is that when half a block north of Olive street he reined his team into perfect control and kept them under control from then until the accident occurred. It is useless to repeat the plaintiff’s testimony on that subject, for there can be no question that it was as stated. As to reckless driving being the proximate cause of the collision, that issue is out of the case on this appeal. Of course the jury might have found the plaintiff drove recklessly and thereby brought on the casualty, for there was testimony to justify such a view; but by no means all the evidence was that way. The testimony of the plaintiff in regard to having his team under control distinguishes this case from the one chiefly relied on by the appellant, to-wit, Birmingham, etc., Railroad v. Barker, 28 So. 87. In that case the opinion says there was no effort to check the speed of the hoseeart on its approach to the railway track, and the Supreme Court of Alabama deemed the evidence to prove plaintiff guilty of negligence, conclusive. The facts presented here are essentially different on the decisive point..

The testimony for the plaintiff goes to show that ' the street car stopped on the crossing of Olive street and Oompton avenue, presumably to let the hoseeart drive past. When the plaintiff attempted to proceed around the front of the car, the motorman turned on the power and the car shot forward, forcing the plaintiff to rein his team violently to the east, thereby throwing the cart against the lamp-post. We think no court would hold that contributory negligence was conclusively established against the plaintiff on such a showing, and we' would hesitate to follow a precedent to that effect unless we were bound by it. It is incredible that the motorman should have intended to bring about a catastrophe, and the probable explanation of his conduct in sending the' car forward suddenly, is that he had become confused by the gestures and shouts of the excited crowd on the street corners. We have stated the facts according to the testimony for the plaintiff; that for the defendant goes to show the plaintiff was to blame. A prima facie case was shown.

The petition is somewhat ambiguous in its charges. The allegation that the car was negligently “drawn across” Compton avenue, might signify that it was suddenly stopped on the crossing in front of plaintiff’s team and that the stop forced the plaintiff to wheel around with the disastrous result that followed. No motion was filed for a more definite petition and the evidence as to the exact facts of the accident- went in without objection. The instructions followed the language of the petition in requiring the jury to find the accident happened as charged. No insistence was laid on the ambiguity of the charge of negligence and it is probably sufficient after verdict.

The judgment is affirmed.

All concur.