17 S.W.2d 549 | Mo. Ct. App. | 1929
Lead Opinion
The evidence showed that the plaintiff was sixteen years of age at the time of injury. The court instructed the jury that if they found for the plaintiff, in assessing her damages, they should allow her such sum as would fairly and reasonably compensate her for her injuries, and that they might, among other things, take into consideration her age and expectancy of life and the impairment of earning capacity, if any, resulting from her injury. The jury returned a verdict for plaintiff in the sum of $2500. The court required a remittitur as a condition to overruling the motion for new trial. The remittitur was filed, judgment was then entered for plaintiff in the sum of $1500, and defendant appealed.
It is contended that plaintiff failed to make out a case under the humanitarian doctrine, because the evidence, when viewed in the light most favorable to plaintiff, showed that when the engineer was called upon to stop the train he had such a short time within which to act that he could not be held to be negligent for failing to do so. We will not attempt to point out all of the various findings of a jury which would be sustained by this record. It is sufficient to point out that there is evidence in the record from which a jury could find that it was obvious, after plaintiff threw on the brakes of the automobile, and the plaintiff and her guest began struggling with the wheel, that the occupants of the car were in a position of peril and would not be able to extricate themselves; that at this time defendant's electrical car was fifty or sixty feet away and was traveling at a rate of speed which would have enabled the engineer to stop the car within twenty-two and one-half feet. We think that this made a case for the jury under the humanitarian doctrine.
Appellant has called our attention to cases decided by the Supreme Court in which it was held that the railroad company could not be held guilty of negligence, even though it was shown that it was humanly possible for the railroad train to be stopped after the peril of the plaintiff had become obvious. [Sullivan v. Railroad,
"There is some speculation as to how much time it would take for the fireman, after seeing the peril of the plaintiff and her companions, to call to the engineer, for the engineer to comprehend the message and to sound the whistle. It must be remembered that men in charge of railway trains are trained to quick observation and quick action. They do not have to stop and think of the thing to be done. Action follows the impression, automatic and instantaneous; otherwise, they could not hold their jobs. . . . In the Sullivan case there is considerable refinement in the quoted extracts from the Springfield Court of Appeals, regarding what might happen in a given number of seconds where it is said that four seconds is equivalent to four ticks of a watch. A careful count shows that a watch ticks four or five times in a second. An official who watches a foot race can time it to the tenth of a second. His mind apprehends the end of the race and the winner and his action stops the watch; that is, his eye registers the thing that happens, the message is conveyed to his brain, his volition transfers the message to his hand, and the watch is stopped within the tenth of a second. A sprinter runs 300 feet in ten seconds — thirty feet a second. If, as Long says, the train was going thirty miles an hour, and the automobile half as fast, the latter moved at twenty-two feet per second. There was evidence that the automobile was going not more than twelve miles an hour. If, when it was two hundred feet from the track, Long saw it was not going to stop, nine seconds, and if it was only one hundred feet, then four and one-half seconds, intervened before the collision in which Long could have told the engineer of danger. It is not a violent inference that the fireman could say `Whistle!' and the engineer could pull the cord within the space of a single second or less. We do not have to indulge in refinements to reach such a conclusion because trainmen are trained to act instantaneously."
The case from which we have quoted was decided by the Court en Banc after the decisions of the cases relied upon by appellant. It repudiates the loose and inaccurate statements contained in one of the earlier cases, and gives sound and excellent reasons therefor. Neither the Supreme Court nor any other appellate court can make a finding of fact in a lawsuit other than to declare that which is common knowledge. If it were true as a matter of common knowledge that a man with reasonable skill in operating a conveyance could not *488 apprehend danger and take action to prevent injury within four-seconds, then automobile collisions at street crossings would be the rule rather than the exception. If it be true that the mind requires so much time to apprehend a situation and put the body into operation, then it could be impossible for any person to learn to play a piano. In this case the engineer was a witness for defendant. He testified that he could have stopped the railroad car within twenty-two and one-half feet. He was talking about the same car, at the same place, at the same time, and under the same weather conditions that were involved in this case. Surely an appellate court could not be expected to hold that his testimony was false as a matter of law, especially when every day we see stops made in short distances upon the appearance of danger.
We further take into consideration the fact that the railroad car in question was a single electric car, operated somewhat like a street car where all the appliances for controlling the speed of the car were under the control of a single motorman or engineer. The car was operated within the city limits and was approaching the main street of the town, where the engineer would naturally be on the lookout for persons who were using the public street. Under such circumstances the jury had a right to find that if the engineer allowed the car to run a distance of thirty-seven and one-half feet before taking action to stop the car after seeing that the occupants of the automobile were in a position of peril from which they could not extricate themselves, he was guilty of negligence.
Appellant contends that the court erred in giving plaintiff's instruction No. 1 as modified by the court. This is the instruction which has been set out in the statement of the case. It will be noticed that by this instruction the jury is allowed to find for plaintiff if they find that plaintiff, immediately before the collision, was in a position of imminent peril and that plaintiff was oblivious thereto or unable to extricate herself; and that the engineer thereafter knew or in the exercise of ordinary care could or should have known that plaintiff was in such position or coming into such position of imminent danger and was oblivious thereto or unable to extricate herself, and that the engineer knew such facts in time by the exercise of ordinary care to have stopped the train or slackened the speed thereof or sounded a warning of approach and could have thereby avoided the collision. We have pointed out that there was sufficient evidence to submit the case to the jury upon the theory that plaintiff was in a position of peril from which she could not extricate herself and that after her peril became obvious the engineer had time to stop the train by the exercise of ordinary care before a collision occurred. Without stopping to set out all of the evidence, we also hold that there was sufficient evidence from which the jury could have found that it was *489 obvious that plaintiff was coming into a position of peril and was oblivious of the danger, in time for the engineer to have sounded the whistle and thus attracted the attention of the plaintiff so that she would not have gotten into the position of imminent peril which resulted in the collision. But the vice of this instruction is the fact that all of these propositions are stated in the alternative; so that the effect of the instruction is to present to the jury, as one of the theories upon which the plaintiff might recover, the following state of facts; that plaintiff was in a position of imminent peril and unable to extricate herself; that defendant's employee in charge of the operation of the train thereafter knew or by the exercise of ordinary care could or should have known that plaintiff was unable to extricate herself in time, by the exercise of ordinary care, to have sounded warning of the approach of the railroad car, and thereby have avoided a collision; that he failed to sound the warning.
There was no evidence upon which defendant could have been held liable upon such a theory. Plaintiff got into a position of peril from which she could not extricate herself because of the fact that, under the stress of the moment, she and another passenger struggled with the steering wheel and she put on the brakes, and there was evidence that the engineer could have avoided the collision by stopping. According to the testimony of some of the witnesses he did not have time to stop. It was very clear that he had time to sound the whistle. It is equally clear that sounding the whistle after plaintiff was unable to extricate herself would have done no good. Of course, we realize that it may be contended that the jury would not have so construed the instruction as to believe that the court intended that they should find for the plaintiff if the engineer had time to sound the whistle after plaintiff had gotten into a position of peril from which she could not extricate herself. But the Supreme Court has so often held that it is error to give an instruction which is not supported by any evidence that we do not feel at liberty to treat this as an open question.
Respondent contends that appellant's objection to Instruction No. 1 must fall upon deaf ears in this court; that appellant's assignment is wholly insufficient to present any issue for appellate review for the reason that it does not specify in what particular plaintiff's instruction No. 1 is defective or erroneous. Appellant's brief is divided under three titles. Under the first title "Assignment of Errors" appears the following: "The court erred in giving plaintiff's instruction No. 1 as modified and given by the court." Under the title "Points and Authorities" this allegation is repeated, followed by the citation of authorities. Under the heading "Argument" appears a sub-title "instruction No. 1." This is followed by a detailed statement of appellant's objection to the instruction in which *490 it is contended that the instruction is to be condemned because of the submission of unsupported alternatives. Authorities are cited to the effect that when an instruction submits ground for recovery in the alternative, authorizing a verdict upon any one of the alternatives alone, the instruction is bad if any one of the alternatives is unsupported by the evidence.
Section 1511, Revised Statutes 1919, provides that on appeals and writs of error the party shall, on or before the day next preceding the day upon which the cause is docketed for hearing, make out and furnish the court with a clear and concise statement of the case and the points intended to be insisted on in argument. If the appellant has made out and furnished the court the points intended to be insisted on in argument this satisfies section 1511, whether the points so made out be under the title "Assignment of Errors," "Points and Authorities," "Brief," "Argument" or under all of such titles, provided they be so connected as to clearly furnish a statement of the points to the court. It is clear that there has been no violation of the statute in this case. The sufficiency of appellant's assignment of errors must therefore turn upon a construction of the rules of this court. Appellant has cited decisions of the Supreme Court in support of its contention that the rule has not been complied with. In each case the Supreme Court was construing its own rule fifteen not our rule seventeen. While the rules are similar, yet they are not worded alike. Our rule seventeen provides that the brief shall distinctly and separately allege the errors committed by the inferior court, and no reference will be permitted in the oral argument to errors not thus specified. Our rule fifteen provides that the brief shall contain in numerical order the points or legal propositions relied upon with citation of such authorities as counsel may desire to present in support thereof. Appellant's assignment, both under the title "assignment or errors" and "points and authorities" is in numerical order. It very distinctly informs the court that the appellant complains of the action of the court in giving this instruction. The reasons why the instruction should not be given appear under the title "argument" in the same numerical order. We not only think that this is a substantial compliance with the statute and our rule, but we think it is good practice. It is more convenient, both for this court and opposing counsel, if the parts of the record under attack are pointed out in the assignment of errors, or the points and authorities, and the discussion, analysis and argument, is set forth in the printed argument. When a brief is so prepared the court at once perceives what part of the record needs closest attention. It is neither confusing nor inconvenient, when each assignment is taken up separately, to refer to the appropriate part of the printed argument for the development of appellant's contention. In discussing its own rule the Supreme Court has said: *491
"Much latitude must, in the very nature of things, be permitted under Rule 15 of this court. Each brief and argument must depend largely upon the individuality of the person who prepares or makes them, and no fixed standard can be erected by which each and all briefs and arguments are to be measured or tested. Just so there is a substantial compliance with Rule 15, no objection can successfully be made to the form of the brief or the order of the argument." [Wallace v. Libby,
In discussing our own rule this court, speaking through Judge ARNOLD, has very clearly expressed the reason upon which the rule is based as follows:
"An examination of defendant's brief discloses there are, in fact, no separate assignments of error, but under "Points and Authorities." Said assignments are separately stated and numbered, thus making clear the contentions of appellant. This has been held to be a sufficient compliance with the rule and follows the ruling of the Supreme Court in Kirkland v. Bixby et al.,
The cases cited by respondent do not support her contention. The Supreme Court has recognized the rule that a bare statement in the assignment of errors that the court erred in giving or refusing a certain instruction, though insufficient standing by itself, is sufficient if the reasons why the court erred are given thereafter. It makes no difference whether the reasons given are under the title "Points and Authorities," or "Brief," or "Argument." The printed argument is a part of the brief. When such a separation is made it is only to indicate to the court that that part of the brief is argumentative in nature.
Appellant complains that by plaintiff's instruction No. 3 the court permitted the plaintiff, a minor, to recover for lost earnings without excluding from the consideration of the jury such earnings as would have been lost during her minority. It is undoubtedly true that the plaintiff's earnings during minority would belong to her parent, as there is no evidence in the record of complete emancipation. Respondent contends that such instructions have been sustained where the defendant did not ask an explanatory instruction excluding the time of plaintiff's minority from the consideration of the jury. This case must be retried. It is not likely that the instruction will again *492 be given in its present form. We therefore deem it unnecessary to decide the question. The judgment is reversed and the cause remanded. Lee, C., concurs.
Addendum
The foregoing opinion by BARNETT, C., is hereby adopted as the opinion of the court. All concur, except Trimble, P.J., absent.
