
    J. L. AGNEW, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Kansas City Court of Appeals,
    June 3, 1907.
    1. STREET RAILROADS: Negligence: Teamster’s Assistant: Evidence. An ordinary lielper to a teamster is not required to keep constant watch to see that' he acts prudently, in the absence of reason to believe that he was not a careful driver; but if he should observe that the driver was not taking reasonable precautions of safety it would be his duty to so remind the driver or look out for himself; and the evidence shows the assistant was not guilty of contributory negligence arid the case was properly sent to the jury since the defendant’s evidence would support a verdict for the plaintiff.
    2. DAMAGES: Personal Injury: Excessive Verdict: Remittitur. A judgment after remittitur is held hot to be excessive.
    
      Appeal from Jackson Circuit' Court. — Eon. James E. Mover, Judge.
    Affirmed.
    
      John E. Lucas and Frank G. Johnson for appellant.
    (1) Plaintiff was clearly guilty of contributory negligence and the trial court should have taken the case away from the jury. Griffith y. Railroad, 44 Fed. 580 ; Hoag y. Railroad,- 111 N. Y. 199; Van Bush v. Railroad, 62 Kan. 709; Smith v. Railroad, 32 Atl. 967; Dean v. Railroad, 18 Atl. 718; Township of Crescent v. Anderson, 8 Atl. 379; Railroad y. McLeod, 29 So. 76; Dean y. Railroad, supra; Railroad v. Anderson, 8 Atl. 379. (2) The yerdict of the jury was grossly excessive and the forced remittitur made by plaintiff did not cure the yerdict. Chitty v. Railroad, 148 Mo. 82; Doty v. Steinberg, 25 Mo. App. 328.
    
      J. G. Littick and Cowherd & Ingraham for respondent.
    (1) There is no room in this case for the doctrine of contributory negligence. Stotler y. Railroad, 200 Sup. 107, 98 S. W. 520; Peterson v. Transit Co., 97 S. W. 860; Sluder v. Transit Co., 189 M'o> 140; Baxter v. Transit Co., 103 Mo. App. 608; Keitle v.„ Railroad, 28 Mo. 663; Marsh y. Railroad, 104 Mo. App. 577; Fechley v. Traction Co., 119 Mo. App. 358; Campbell v. Railroad, 176 Mo. 174; Oats v. Railroad, 168 Mb. 544; Beier y. Railroad, 197 Mo. 215; Rectenwald v. Railroad, 97 S. W. 557; Cole y. Railroad, 97 S. W. 555; Peterson v. Transit Co., 97 S. W. 860; Latson-v. Transit Co., 192 Mo. 499; Beier y. Transit Co., 197 Mo. 215; Schafstette y. Railroad, 175 Mo. 142; Biscuit Co. v. Transit Co., 108 Mo. App. ,297; Kolb v. Transit Co., 102 Mo. App.. 143; Kellney y. Railroad, 101 Mo. 67; Morgan y. Railroad, 169 Mo. 262; Jett v. Railroad, 178 M'o. 664; Sepetowski v. Transit Co., 102 Mo. App. 110; Linder v. Transit Co., 103 Mo. App. 574; Baxter v. Transit Co., 103 Mo. Ápp. 597; Moore v. Transit Co., 92 S. W. 390. (3) Under the evidence in this case the verdict was not excessive.
   ELLISON, J.

This is an action for personal injury in which the plaintiff prevailed in- the trial court.

Plaintiff was assisting one Shuttleworth in moving some furniture and they were using a one-horse wagon. They had hauled one load and were returning for another and were crossing a bridge over which defendant’s double track was laid, the bridge being some wider than to accommodate the two tracks, and also a footway on either side for pedestrians traveling the street. Shuttleworth was driving and plaintiff was sitting in the rear end with his feet hanging out and his back to the driver. The bridge was what was been termed as not laying with the compass and was in rather a diagonal shape. But the witnesses and parties have designated the sides of the bridge or tracks as east and west. Shuttleworth was driving west and the car which figures in the controversy, was traveling east; so that, they were going in opposite directions.

Defendant concedes that if Shuttleworth was guilty of contributory negligence it would not be imputable to the plaintiff. [Sluder v. Transit Co., 189 Mo. 107; Munger v. Sedalia, 66 Mo. App. 629; Profit v. Railway, 91 Mo. App. 369; Marsh v. Railway, 104 Mo. App. 577.] In two recent cases, one in the Supreme Court (Stotler v. Railway, — Mo. —, 98 S. W. 509), and one in the St. Louis Court of Appeals (Fechley v. Traction Co., 119 Mo. App. 358), the rule was again stated and approved. But defendant insists that while not contending for imputable negligence, that plaintiff himself was guilty of negligence; that if the negligence of plaintiff contributed with that of Shuttleworth there could be no recovery. We considered a like question in Marsh v. Railway, 104 Mo. App. 577, 587, a case not so strong for the plaintiff as is the case, at bar, and we concluded that the "occupant of the wagon with the driver was not negligent. That was a case against a steam railway where the plaintff was crossing a railway track. While this case was on a narrow bridge in a street where persons had a right to be.' We do not consider that there was any evidence in the cause which would justify holding plaintiff guilty of contributory negligence. It is altogether unreasonable to suppose that an ordinary helper to a teamster should keep constant watch upon him to see that he is acting prudently and cautiously, in the absence of knowledge or reason to believe that he was not a careful driver, or a prudent !man. If one in the vehicle with the driver should observe that he was not taking reasonable precautions of safety then, of course, it would be his duty to remind the driver, or to look out for himself.

In this case, the driver of the wagon went upon the bridge, as he had a right to go. There is evidence tending to show that he had avoided another wagon, that he was near the end of the bridge were he could be clear of the approaching car and that he came near clearing himself, as it was the rear part of the rear wheel that was struck. We have read over the evidence of the motorman himself testifying for the defendant, and think the jury could well have based the verdict on what he stated. The jury could readily believe that he should have stopped the car, or have slowed down as he did and not started up again. He stated that he saw the wagon on the bridge one hundred and fifty or two hundred feet away. That it was coming towards him, got to the end of the bridge, “I slacked up and when be came out to where it widens, as he went out he was in the clear then and I had come to practically a stop — I wasn’t dead stopped — as he was out of the clear I threw a few points on, after he started to turn his horse, hut it was snowy and slick and that threw his wheel around and it caught on the corner of the fender of my car.”

From this it will be seen that he thought it necessary to slow up or stop in order to avoid the collision, but that thinking the wagon would clear the track he started up and struck it, caused, as he states, by the wheel sliding down the rail or by the side of the rail. It is plain that he started his car up before the wheel was clear. [Peterson v. Transit Co., 199 Mo. 331, 97 S. W. 860; Rectenwald v. Railway, 97 S. W. 557; Cole v. Railway, 121 Mo. App. 605, 97 S. W. 555; Latson v. Transit Co., 192 Mo. 449; Beier v. Transit Co., 197 Mo. 215; Schafstette v. Railway, 175 Mo. 142.]

But the whole case was properly submitted to the jury in instructions. None for either side was refused. That for plaintiff presented the case in its entirety. It was therein submitted to the jury whether the motorman saw the position of the wagon in time to have stopped, and whether he knew that if he did not stop or slacken the speed that be would strike the wagon, and whether he negligently and carelessly failed to stop or slacken the speed and thereby collided with the wagon.

It is earnestly insisted that the judgment is excessive. The verdict was for five thousand dollars. The trial court required a remittitur of two thousand which being entered judgment was rendered for three thousand dollars. An examination of the evidence has not satisfied us that the trial court’s discretion was not exercised in a proper way. We cannot say that he should have required a greater reduction and hence affirm the judgment.

All concur.  