Niehaus v. United Railways Co.

CAULFIELD, J. (after stating the facts). — I. The defendant first contends that the court erred in refusing to direct a verdict for the defendant, because “there was' no showing that the collision would not have occurred had the car been running at fifteen miles per hour, and, therefore, no causal connection was established between the alleged operation of the car at a negligent rate of speed and the .injury to decedent.” We do not agree with defendant’s premise and therefore cannot accept the conclusion based thereon. It appears from the evidence that the vehicle in which the plaintiff was riding was an ordinary runabout, pulled by a small horse. The horse approached the track and was crossing over it at an ordinary trot, when the car bore down upon it, running twenty-five miles an hour. The car apparently struck at a point near the rear of the horse and the front of the body of the runabout. It had maintained this high rate of speed for at least 105 feet. It would have taken it two seconds longer to run that 105 feet and reach the point of collision if it had been going only fifteen miles an hour. The jury may well have found that during that extra two seconds the horse and runabout, going at an ordinary trot, say six miles — 615 — an hour, could have passed off the track and escaped. Under these circumstances the question of causal connection was properly submitted to the jury. [See Stotler v. Railroad, 200 Mo. 107, 98 S. W. 509; Powers v. Transit Co., 202 Mo. 267, 100 S. W. 655; Schmidt v. Transit Co., 140 Mo. App. 182, 120 S. W. 96; Connor v. Wabash Railroad, 149 Mo. App. 675, 129 S. W. 777; Strauchon v. Met. Street Ry. Co., 232 Mo. 587, 596, 135 S. W. 14.] II. There was no error in the admission of the testimony of witness Gohausen “that .the car was going faster than the ordinary.” His .other testimony disclosed that he meant that the car was going faster than they ordinarily travelled down the hill on Shenandoah avenue to the point where the collision occurred. On cross-examination he testified in effect that the cars usually travelled fast down that hill but that. “this car travelled faster than they ordinarily do.” The rule is well settled in this state “that the rate of speed of moving cars may be shown by the opinion of a witness who saw the cars in motion,” and that ‘ one who sees a moving train and possesses a knowledge of time and distance is competent to express an opinion as to the rate of speed at which the train is moving.” [Walsh v. Railroad, 102 Mo. 582, 586, 14 S. W. 873, 15 S. W. 757.] This evidence then was not incompetent for the purpose of proving the speed of the car. Was it relevant? We think it was. One of the allegations of negligence was that the car was run “at said time and place at a high and dangerous rate of speed;” another that the speed of the car was In excess of the maximum rate prescribed by ordinance. One of the witnesses testified that the car was running at the rate of twenty-five miles an hour. The evidence that the car was running faster than cars usually ran at that place had a tendency to prove that the speed was negligent, for the fact that the speed — 616 — was different than ordinary, different in snch a way as to be more dangerous to travellers on the highway was a circumstance proper to be taken into consideration by the jury in determining whether the speed was negligent. Moreover, this testimony that though cars usually ran fast do.wn this incline, this car was running still faster, had a tendency to corroborate the testimony of the witness who testified with exactness to a high rate of speed, just as testimony that it was going very slow would have had a tendency to refute it. The tendency might be slight, but it exists nevertheless. In Kansas City, etc. Ry. Co. v. Crocker, 95 Ala. 412, a witness was asked about how fast the car was going “compared to a man running,” and the witness answered “Well, sir, it was running faster than a man could run.” In holding this question and answer to be proper the Supreme Court of Alabama, made the following observations which we deem pertinent here: “That the witness is unable to state that the object in question was moving at the rate of a certain number of miles in an hour would not necessarily render his opinion useless as an aid to the jury. Assistance in coming to a conclusion on such a question may be derived from a statement that the object was going slowly, or at a snail’s pace, or no faster than a man walks, or faster than a man could run. The opinions are admitted to enable the jury to realize, as far as possible, the impression as to speed made by the moving object upon the mind of one who saw it. It would be more satisfactory if the admissibility of such opinions could be made to depend upon their conformity to some definite standard of clearness of accuracy in their formation and expression. It is not practicable, however, to fix any such standard. The vagueness of the opinion would only go to the weight of the testimony, and not to its admissibility.” To. the same effect is I. C. R. R. Co. v. Ashline, 171 Ill. 313, where it was held proper to permit a witness. — 617 — to testify that the train was running “fast.” See, also, Guggenheim v. L. S. & M. S. Ry. Co., 66 Mich. 150, 155. So we are of the opinion here that while the testimony complained of was, perhaps, of little weight, still it was competent and relevant, and its weight was a matter for the trier of the facts, to he considered by them in connection with the other testimony as to speed. What we have said and quoted applies with at least equal force to the testimony of witness Kletzker, that the car was going much faster than an automobile going fifteen to twenty miles an hour. III. Defendant contends that the first instruction given at the instance of the plaintiff was erroneous in that it broadened the issues made by the pleadings. In this respect defendant assumes that even under the first charge of negligence, the plaintiff must prove that the car was running more than fifteen miles an hour. This assumption and the conclusion based thereon are erroneous. The first charge is that the motorman was “running said car at said time and place at a high and dangerous rate of speed, towit, at a speed of more than fifteen miles per hour.” It is clear from the reading of the entire petition that this was a charge of common law negligence, the gravamen of which was that the car was being run at too great a rate of speed under the circumstances, not that it was being run at a rate of speed in excess of fifteen miles an hour. It was sufficient to prove such gravamen and unnecessary to prove that the car was running more than fifteen miles an hour. By this instruction, or the part complained of,- the trial court so informed the jury. In doing so it did not broaden the issues or commit any error. IV. Defendant contends that “instruction No. 12, defining the measure of damages, is erroneous: — 618 — (a) “Because it permitted an award of compensatory damages. (b) “Because it permitted an award of compensatory damages without any foundation having been laid by the evidence. (c) “Because it assumes that defendant’s alleged negligent acts were unlawful, and because it singles out and comments on such alleged negligence by characterizing it as unlawful.” The first two points made against the instruction are without merit as the instruction clearly contemplates the infliction of a penalty as distinguished from award of compensatory damages. ¥e may say, however, though it is not germane to any point involved,, that if there had been anything in the case to justify it, then, under the last decision of our Supreme Court in Boyd v. Mo. Pac. Ry. Co., 236 Mo. 54, 139 S. W. 561, the question of pecuniary loss might properly have been submitted to the jury to be considered by them in determining the amount of their verdict along with the facts bearing on the penal phase of the case. But it was not necessary, under that decision, that such pecuniary loss be shown in order that plaintiff might be permitted to recover at all. In the absence of pecuniary loss the plaintiff would have a right to-recover on the penal phase of the case alone, as was done here. As to the third point made against this instruction, we see no error in the use of the word' “unlawful” as it occurs therein, though it might have been better to omit it. The instruction does not assume that defendant was guilty of a negligent act which caused the death of Miss Niehaus. It merely describes such act as “unlawful” if committed under the circumstances hypothesized in other instructions, This was not incorrect, for the act was undoubtedly “unlawful” if committed under those circumstances. It was unlawful whatever the degree of culpability involved and to so designate it did not express or sug — 619 — gest any degree of culpability or indicate any bias or opinion on tbe part of tbe judge in that respect. Tbe court described it, not by way of epithet or denunciation or showing of bias or opinion, but solely in order to make clear that the jury were to inflict a penalty instead of awarding damages. It could not properly have been understood otherwise, or have had any prejudicial effect on the amount of the verdict. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.