102 Mo. App. 87 | Mo. Ct. App. | 1903
Lead Opinion
(after stating the facts as above) — Defendant demurred to plaintiff’s evidence which the court denied. The case was submitted to the jury and a verdict was rendered for plaintiff.' From an order setting aside the verdict and granting a new trial, plaintiff appealed. The court granted the new trial on the following ground set forth in the motion therefor, to-.wit :
“First. Because the court erred in giving improper and illegal instructions on behalf of the plaintiff over the objections of defendant.
“Second. Because the court erred in refusing proper and legal instructions asked on behalf of the defendant.
‘ ‘ Third. Because the court erred in not sustaining the defendant’s demurrer to the plaintiff’s evidence, and in submitting the case to the jury. ’ ’
If the plaintiff’s case rested solely on his own evidence, we think he should have been nonsuited. His testimony, that before driving on the track he looked north and south and did not see an approaching car, is not to be believed because opposed to the undisputed physical facts which show that if he had looked he could not have but seen the approaching car. Such testimony is without any probative force whatever and authorizes the trial court to withdraw it from the consideration of the jury; in such circumstances it is its duty to do so to promote substantial justice. Kries v. Railway Co., 148 Mo. l. c. 330; Ferguson & Wheeler v. Venice Trans. Co., 79 Mo. App. l. c. 361.
On the other hand, if without looking or listening for an approaching car, the plaintiff drove upon the track so near to an approaching car that it could not be stopped in time to avoid a collision, the defendant company is not liable, notwithstanding the fact that the motorman failed to sound his gong. In such circumstances both parties would be guilty of negligence and the plaintiff would not be entitled to recover for the reason that there is, in this State, no such thing as comparative negligence, and where the negligence of both parties contributes to produce the injury the plaintiff can not recover. Powell v. Railway, 76 Mo. 80; Yancey v. Railway, 93 Mo. 433; Butts v. Railway, 98 Mo. 272; Boyd v. Railway, 105 Mo. 371; Vogg v. Railway, 138 Mo. 172; Peterson v. Railway, 156 Mo. 552; Holwerson v. Railway, 157 Mo. 218; Conrad Grocer Co. v. Railroad, 89 Mo. App. 534; Millinery Co. v. Railway, 59 Mo. App. 668.
2. For the plaintiff the court gave the following instruction:
“4. The court instructs the jury that if they believe from the evidence, that on the first day of February, 1900, Jefferson avenue, at the place mentioned in -the evidence, was a public street within the city of St.*93 Louis, and that the defendant was operating street ears over and along said thoroughfare, and if you find from the evidence that on said day plaintiff was driving his horse and wagon across said Jefferson avenue, over defendant’s track from the east to the west side thereof near the intersection of Greyer avenue, and that whilst so doing defendant’s south-bound car collided with the rear, of plaintiff’s wagon overturning the same and thereby injuring or breaking the right leg of the plaintiff ; and if you further find from the evidence that the motorman in charge of said ear saw, or by the exercise of ordinary care, in keeping watch for persons on foot and vehicles, either on the track or moving towards defendant’s track, and in danger, of being injured by said car, would have seen plaintiff’s wagon on defendant’s track or moving towards it, and in danger of injury by defendant’s car; and thereafter could have averted said collision and injury to plaintiff by the exércise of ordinary care and neglected to do so, the defendant is liable in this case whether plaintiff exercised ordinary care to look out for said cars or not, and in that event the negligence of the plaintiff is no defense to this action, if you also find that plaintiff exercised ordinary care, under all the circumstances, to avoid the accident after he became aware of his danger, and if you so find your verdict will be for the plaintiff and you will assess his damages at such sum as directed in another instruction. ’ ’
Plaintiff testified that he looked before attempting to cross the track; that he saw no car. .The physical facts present at the time conclusively show that if he looked, as he said he did, he saw the car and knew that it was approaching, and with this knowledge continued on in his course without again looking to see whether or not he could cross the track in safety ahead of the car. If this be true then he was guilty of such contributory negligence as precluded his right of recovery. Watson v. Mound City R’y Co., 133 Mo. 246; Boyd v. Wab
The judgment is affirmed.
Concurrence Opinion
(concurring). — My objection to the instruction in the foregoing opinion goes mainly to the portion which says that if the motorman could have avoided the accident by ordinary care, “the negligence of the plaintiff was no defense.” This is too strong. It ought to have been qualified by telling the jury the plaintiff’s negligence was no defense unless it directly or proximately contributed to cause the accident. On the whole, this instruction was so drawn that the jury were apt to be misled into thinking that the plaintiff’s negligence, whether proximate or remote, was no defense.
