195 Mo. App. 684 | Mo. Ct. App. | 1916
Lead Opinion
This is an action to recover damages for injuries said to have been sustained by plaintiff, while, as a pedestrian, she was crossing at the intersection of Washington and Pendleton avenues, public streets in the city of St. Louis, by being struck by an
It is averred that at the date of the accident there was in force in the city of St. Louis, “an ordinance which, among other provisions, provided that drivers of motor vehicles shall, when approaching a crossing on the public street, sound their signal in such a way as to give warning- to other vehicles and to pedestrians of their approach. There was also on said date an ordinance in force in said city which provided that no automobile', motor vehicle, locomobile, or horseless vehicle, propelled by the use of electricity, gasoline or steam, shall be moved or propelled along, over, or upon any public street, avenue, boulevard or other public place at a greater rate of speed than is reasonable, having regard to the traffic and use of such street, avenue, boulevard or public place, or so as to endanger the life or limb of any person, and shall not in any event, while upon any such street, ... be moved or propelled at a greater rate of speed than eight miles an hour in
It is alleged that the point at which the accident occurred, that is to say, the intersection of Washington and Pendleton avenues, was not in the business portion of the city and that Pendleton avenue is a north and south, and Washington avenue an east and west street. It is further averred that under the laws of this State and at the time set forth in the petition, it was the duty of persons owning, operating or controlling an automobile upon any public street,, avenue or other place much used for travel, to use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons on such street, and on approaching a pedestrian on the travelled parts of a highway, and upon approaching an intersecting highway, to slow down and give a timely signal. Averring that at the time of the. accident plaintiff was a pedestrian crossing Washington avenue southwardly upon the east crossing of Pendlton avenue at Washington avenue, where, as it is averred, by the exercise of orr dinary care, she could have been seen by Mrs. Ford in ample time to have avoided all injury to her, it is charged that Mrs. Ford, in violation of the duty imposed by law and ordinances upon persons owning, operating or controlling an automobile running along, over and upon a public street or avenue, as above set out, negligently and without using the care required by law to prevent injury to plaintiff, ran the automobile at a high and dangerous rate of speed and at a rate in excess of ten miles an hour and without sounding any warning and without slowing down as she approached the crossing, into and upon plaintiff, and with great force and violence striking her, knocking her down and seriously and permanently injuring her. Stating the extent and duration of her injuries and -loss of her earnings in her professional work as a musician, damages are laid at $30,000, for which she demands -judgment
The answer, after a general denial, pleads contributory negligence on the part of plaintiff.
By stipulation between counsel and before a trial, the petition was amended bv inserting in it an averment to the effect that on the date of the accident there was also an ordinance of the city in force which provided that a vehicle, except when passing a vehicle ahead, shall keep as near to the right-hand curb as possible. By like stipulation there was also inserted in the petition the words, “and without keeping as near as possible to the right-hand curb of said avenue,” coupling this with the charge that Mrs. Ford, in violation of the city ordinance and the law, was driving at a rate in excess of ten miles an hour and without sounding any warning, and without slowing down as she approached the crossing.
At the trial before the court and a jury, a verdict was returned in favor of plaintiff and against the defendants John W. Ford and his wife, for $3500, judgment following. Interposing a motion for new trial, as well as one in arrest, and these being overruled, the defendants have duly appealed to our court.
Three errors are here assigned. The first is, that the trial court erred in overruling appellant’s demurrers at the close of plaintiff’s case and at the close of all the evidence offered, because respondent was guilty of gross negligence which directly contributed to her injuries.
On a careful reading of all the testimony offered in behalf of plaintiff, and that is the testimony to be considered in passing on this demurrer, we are unable to hold, as a matter of law, that plaintiff was guilty of contributory negligence. Tier own testimony is that she was a young woman at the time of the accident about twenty-two years old, living on Morgan street, in St. Louis, and attending both as pupil and teacher a school of music situated in the Musical Arts Building, located on the corner of Boyle avenue and Olive street, in that city. She started from her home for that place, it being a little over three blocks south of her starting point, about eleven o’clock on the morning of October 27, 1912. that being a bright, clear day. She walked east to Pen
On cross-examination, plaintiff testified that after the gasoline car had passed, she started immediately to cross the street back of that car; that she did not look either way before' she did this; did not look for the following machine; that after the gasoline machine Siad passed her, she walked right on without looking, and started on across; had taken a few step's in the street when the following machine struck her. Asked if there was anything to prevent her seeing the following machine if she had looked, she said she supposed not; that if she had stopped where she was at the time the forward machine passed, she supposed the following one would have passed without hitting her; as she had not seen this following machine she could not tell how fast it was coming, but that when she did see it, and before she left the curb to cross over behind the forward machine, the electric automobile was so far west and down the street that she never thought of it; did not notice its speed; it seemed to her to be too far away to be able to cover the distance between where it was when she saw it and where she was attempting to cross the street; when she turned her head just before the electric struck her, it seemed to be coming fast, but she did not know its speed. Asked by the court if she had seen this following machine, the one that struck her, the first time'
Asked by the court how far behind the first machine it was when she saw it, plaintiff answered that she could not say exactly, except that it was so great a distance that it never occurred to her that it would catch up before she could cross. Asked by the court if she had any idea as to the number of feet, she said she had not.
Counsel for defendants, continuing the cross-examination, asked her, when she looked up the street and saw that following machine, if that was just when she stepped down off the curb or just after she got down in the gutter. She answered that before she stepped off the curb she had looked to see what, if anything, was coming, and that she did this while still on the sidewalk. She looked up the street, that is to the west, and saw this following machine and then stepped down over the gutter and into the street without looking west again. Asked if she had not walked as far as the middle of the street from the curb; she answered that she did not think she had walked that far; she first went just far enough into the street so that the first would pass her and leave a space between her and it, then, that car having passed, she stepped along behind it in the street. After she had stood on the sidewalk and looked west up Washington avenue and saw this following machine at a distance, she repeated, she did not look again.
Asked by the court if she had stood in the middle of the street after she got there, she answered she had stood in the street just for the first car she was waiting for to pass her. Asked if she had stood there for a sec
Asked by counsel for defendants if she had a roll of music in her hand at the time and if she had not been looking at that when she was struck, she said, “No.” Asked if she was not doing that, and because of that had failed to see the second automobile, she answered that she had not paid any attention to the fact of the second machine; it was so far that she. never considered the fact of its being able to cover the distance; “that you naturally estimate, when you go into the street, what was coming” and she saw only one machine that seemed to make any difference with her crossing. Asked if on this occasion she had crossed the street without looking up, she answered there was nothing coming from the east and there was just this one machine, the gasoline car, that seemed to be close to her; she waited for it to pass and the other one, the following one, did not seem to be close enough to be counted in. While she could not say positively that the machine she had seen at a distance was the one that struck her, she did remember seeing the machine that struck her just before it struck her. The machine was then on her and she had 'no chance to get away.
Other witnesses testified that they saw Miss Oarradine, the plaintiff, attempting’ to cross the street; that she had reached about the center of it and stopped to let one automobile pass. The electric automobile was coming east and after the gasojine machine had passed, plaintiff started to cross and was struck by this electric coupe, which was coming east on Washington avenue on the south side of the street at a rapid gait.
A motorcycle policeman testified that the electric automobile was driven by Mrs. Ford; that there were
This is practicaliy the testimony for plaintiff, and while there were a number of witnesses examined on behalf of defendants, it cannot be said that its general effect was shaken or contradicted in any material respect. Mrs. Ford, however, testifying, said she was not going-over eight miles an hour; that she saw plaintiff standing in the center of the street; that she looked up and saw the electric and walked right into it; that when she saw plaintiff standing- in the street her car'was about a hundred feet west of Pendleton and that plaintiff was about a hundred feet east of that street, crossing- diagonally. On this state of facts the question of contributory negligence was for the jury. We cannot say, as a matter of law, that plaintiff was guilty of contributory negligence.
It is argued by' learned counsel for appellants, in support of his proposition that the court erred in refusing- to take the ease from the jury because of the contributory negligence of plaintiff, that it is the duty of a
In Hodges v. Chambers, 171 Mo. App. 563, 154 S. W. 429, Judge Allen there speaking for our court, after holding that the great number of cases dealing with the duty of one in crossing or walking upon railroad tracks or street car tracks, while correctly applied in cases of
The rule contended for by learned counsel for appellants as to the superior fight of vehicles in the public highways over the right of pedestrians, undoubtedly had its origin in conditions prevailing in feudal times and in monarchal countries, when the “common people” trudged along these highways on foot and the King and his nobles and courtiers rode over them, the “common people,” being pedestrians, having no rights on them which the King and nobles were to or did respect. That is not so in our day and, especially, in our Republic. With us, all have an equal right to the use of public ways and each must so use them as to have due regard to the rights as well as the safety of others. People driving machines propelled by power, whether animal or mechanical, must have due regard to the safety of pedestrians. In brief, and as said by our court in the two cases referred to, the right of the pedestrian to proceed along the streets and highways of the city and of the country, is just as. high as that of the person in a vehicle drawn by horse power or propelled by steam, gasoline or electricity.
As concerning the contributory negligence of the respondent, our Supreme Court, in the recent case of Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S. W. 1144, has said:
“It is not the law that the least negligence of him who is hurt will excuse an otherwise guilty tort-feasor for his negligent act. [Citing cases.] It is plain (and it has so.been ruled) that to hold otherwise would be to bold that there exists in this State the doctrine of comparative negligence, a doctrine which has been, when
In line with what is said by our Supreme Court in the Howard case, supra, and as applicable to the facts in the case at bar, our Supreme Court, in Strauchon v. Metropolitan St. Ry. Co., 232 Mo. 587, 135 S. W. 14, has held that the conduct of the plaintiff there, as shown by the evidence, can only be characterized as poor judgment but does not degenerate into negligence. That is a case where a pedestrian attempting to cross a street railway track, looks and sees from a straight line, or an acute angle, a car approaching two hundred feet away, and supposing that at the usual speed of cars on the track at that point he will have ample time to cross, thereafter gives no further heed to the approach of the car. In such case, it was there held that the pedestrian is not chargeable with contributory negligence in assuming that he could have crossed in safety.
Applying the above rule here, there is evidence tending to show that Mrs. Ford, the driver of this electric machine, was coming at an excessive speed — twenty miles an hour — along one of the most frequented thoroughfares in the city of St. Louis, in the center of the most populous residence district of the city; that she was driving her machine without a sound of warning. The evidence is that these electric machines move along almost noiselessly over a street such as this, a wooden block pavement covered with ereasote and sand, and coming along at this rate of speed, which under the circumstances and the place was reckless, it ran upon this unfortunate young woman and inflicted serious and possibly permanent injuries. So that although plaintiff may have been somewhat negligent in failing, to be more careful before attempting to cross, that fact, as held in the Howard case, supra, will not excuse defendants for the negligent act of so driving the electric machine. As
Furthermore, by her own evidence, Mrs. Ford was not, when she saw plaintiff standing in the center of the street and about to cross, using “the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on, or traveling over, upon or across” a public street. [Act of March 9,' 1911 (Laws 1911, p. 330, sec. 9).]
The second point made by learned counsel for appellants under his assignment as to contributory negligence is that if a pedestrian sees an automobile approaching near him on the street which he proposes crossing, he must continue to observe its movements and that failure to do so is negligence on his part. We do not think that under the facts here present and under the. authorities we have above cited, that point is well taken.
Counsel’s third point under that assignment'is, that-stepping in front of an autmobile is negligence on the part of. a pedestrian. It is true, if respondent did that, knowing of the presence of the automobile, she could not recover. But in the case at bar it distinctly appears that plaintiff here had every reason to suppose that this electric machine was not within striking distance. When she saw it, it was almost a block away and plaintiff had no reason to believe that she was in any danger from it. She was very much in the situation of the plaintiff in the Strauchon case, supra.
The second assignment of error is that .the trial court erred in giving respondent’s first instruction, which advised the jury that if they believed that appellants’ automobile was not as near the right hand curb as possible, their verdict should be for respondent and against appellants, because the ordinance so providing was not pleaded specifically or in substance in the petition. As we have seen, by stipulation of counsel, the petition was
The final assignment is that the trial court erred in giving respondent’s first instruction, which advised the jury that if they believed that appellants’ automobile was exceeding a speed of ten miles an hour, their verdict should be for respondent and against appellants, because the ten-mile ordinance is in conflict with the statute and is therefore void.
This is a challenge of the validity of ten-mile ordinance of the city as being" in conflict with the statute and as inconsistent with the Act of the General Assembly of this State relating to motor vehicles, approved March 9,1911. [Session Acts 1911, p. 322.] When these sections 1338 and 2585 were offered in evidence, counsel for appellants said: “I make the same objection to that,” evidently, referring to the one we have previously set out, which, as we have seen, was a mere general objection to the introduction of the ordinance under the petition, without assigning any specific ground of objection. The validity of the ordinance was in no manner challenged by such an objection. It is therefore apparent that that question, that is to say, as to the validity
Finding no reversible error to the prejudice of appellants in this case, the judgment of the circuit court is affirmed.
Rehearing
ON MOTION FOR REHEARING AND TO TRANSFER TO SUPREME COURT.
Learned counsel for appellants, with other associate counsel, have filed two motions, one for rehearing, the other asking us to transfer the cause to the Supreme Court. While in the motion for rehearing it is claimed that our judgment is in conflict with controlling decisions of the Supreme Court and of our own court and of the other appellate courts of the State on the merits of the case, we do not think, on consideration of the authorities cited
As a further ground it is claimed that the right of recovery is based on an ordinance of the city of St. Louis regulating motor' vehicles, and that if the cause of action is based on an ordinance, or if an instruction is given based on an ordinance, or if evidence is admitted by the trial court on the theory of a valid ordinance, the question of the validity of the ordinance is in the case from start to finish and may be raised in any court at any time, because, if there is no valid ordinance on which to base the judgment, the judgment must fall, it being claimed that the appellants had not waived the question of the validity of the city ordinance regulating motor vehicles.
The motion to transfer to the .Supreme Court is practically grounded on this claim, it being contended that this case involves a construction of section 23, article 9, section 25, article 9, of the Constitution of Missouri, section 26, article 3, of the Charter of the city of St. Louis, and section 9582, of the Revised Statutes of Missouri, and it is claimed that these questions have been duly presented and arise on consideration of the validity of the ordinance upon which the plaintiff based her claim, and that upon such a state of facts this is a case involving the construction of the Constitution of this State, within the meaning of our Constitution and statutes.
In the assignments of error originally filed in this case no attack whatever is made upon the petition as being insufficient, this point being made for the first time in the motion for reheajing. We might conclude to disregard this point, following well settled rules of practice, as evidenced by numerous decisions in the State; but will say that we do not think the petition is objectionable on that ground. It is true that it charges violation of the city ordinance but it also pleads the State law regulating automobiles, in effect, and charges that in violation of the duty imposed “by law as well ás by ordinance,” defendant' had “negligently, and without
As noted in the main opinion, the city ordinances regulating the speed and movement of automobiles through the streets of the city of St. Louis, when offered in evidence, were objected to in the most- general way, no reason whatever being assigned for the objection. We there noted the objection to the ordinance, when first offered, made by counsel for appellants, was: “I object to the introduction, of the ordi-’ nance under this petition.” When other ordinances or sections of the ordinance were offered in evidence, all the objection counsel for defendants made was: £<I make the same objection to that.” We held that these objections did not' challenge the validity of the ordinances.
It is now urged that the validity and constitutionality of the city ordinances regulating automobiles and their speed through the city, is open by reason of the instruction having been based on those ordinances and the giving of that instruction objected to, and that that instruction was again challenged in the motion for new trial. As to this, it may be said that the objection to the instruction was a general one, without specifying in any manner whatever that it was objectionable because baséd on an unconstitutional or void city ordinance. When we examine the motion for the new trial we find it contains fourteen assignments of error; First, that the verdict
The answer in this ease, beyond a general denial, was a plea of contributory negligence.
Our Supreme Court in Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 118 S. W. 1108, commenping at page 689, and considering whether it had jurisdiction of a case, appealed to that • court, said that the Supreme Court, if it had jurisdiction, had it because “a constitutional question was raised and is involved in the fourteenth clause in the motion.” The fourteenth clause referred to charges that section 6433, Revised Statutes
Quoting this fourteenth assignment, or ground in the motion for new trial, our Supreme Court said:
“A constitutional question might possibly obtrude itself at the trial regardless of the pleadings through some unanticipated ruling on the introduction of testimony, when such question was squarely'and with due precision made on objection and exception saved. If raised in that way in an appropriate case, and if the trial court had a chance to correct its error under an appropriate ground in the motion for a new trial, the point would be saved on appeal. So a constitutional question might be preserved on appeal in rare cases by a clause in the motion for a new trial when it did not appear elsewhere in the récord. An example of that kind of a case would be where the court had given some instruction directly or by necessary implication'for the first time involving the Constitution — for instance, permitting nine jurors out of twelve to render a verdict. [Logan v. Field, 192 Mo., l. c. 66.] In such case, or cases of a kindred nature, the first door open for a constitutional question to enter would be in the motion for a new trial. Appellant could raise it no sooner and nowhere else. But it must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given ease, otherwise it will be waived. [Barber Asphalt Paving Co. v. Ridge, 169 Mo. l. c. 387, et seq.] If plaintiff grounds his right of action on a statute which defendants contend is unconstitutional it should be put in the answer and kept alive. If the defendants grounds an affirmative defense.on a statute that plaintiff
The conclusion of the court was that as the appellant had neglected to inject its constitutional question in its answer and in its instructions, it neglected- its opportunity and should be held to a waiver. That case was followed and approved by otir Supreme Court in Woolley and Fish v. Mears and Woodruff, Exrs., 226 Mo. 41, 125 S. W. 1112, where at page 52, Judge Woodson says that in the case then before the court which had originated before a justice of the peace and where no pleadings were required, but where the trial court based its declaration of law upon an Act of the Legislature and at the time appellant objected to the court giving the instruction and to the judgment of the court because said Act was unconstitutional, that that was a timely saving of exception and presented the question of the constitutionality of the Act to the Supreme Court, citing Lohmeyer v. St. Louis Cordage Co., supra, as stating the uniform rulings of the court as to the matter of timely objection. [See, also, Municipal Securities Corporation v. Kansas City,- Mo. ---, 186 S. W. 989.]
• The same rule was held to apply when the validity of an -ordinance was sought to be challenged as unreasonable. [Bluedoin v. Missouri Pacific Ry. Co., 121 Mo. 258, l. c. 271, 25 S. W. 943.]
. In the case at bar, the answer, we have seen, was a general denial, accompanied by a plea of contributory negligence. If the defendant, appellant here, had de
"When the ordinances were offered in' evidence counsel for appellant could then have objected to them as void undér the statute and Constitution, specifying the provisions relied upon, assuming, hut not holding, that he had not lost his right to do so by failure to attack the petition by answer. But he did not do so. So that by his action upon this point that counsel failed to warn plaintiff or the trial court of the pitfall which he now seeks to dig.
The main instruction given at the instance of plaintiff clearly put these- ordinances before the jury as a ground for recovery. Defendant, appellant here, in no manner whatever, except by the general exception to the instruction as a whole, in any manner, challenged the correctness of this instruction permitting the jury to find for plaintiff on a violation of the ordinance.
As we have seen, the motion for new trial in no manner whatever challenged the validity of the ordinance or raised any constitutional question.
Appellant has seen fit to bring up with the record a memorandum opinion filed by the learned trial judge in overruling the motion for new trial. In that memorandum the learned trial judge says: “Defendants, in support of their motion for a new trial, relying solely upon the contention that plaintiff’s own evidence shows her to have been guilty of such contributory negligence as to preclude her as a matter of law from recovering, cite and quote from, in support of their position, numerous Missouri cases declaring that the duty to look is a continuing one, and that the duty does not cease until after the range of danger has been passed; and ask the court to apply those authorities to the facts in this case.” The trial judge then proceeds to discuss this proposition exclusively and determines it adversely to the contention of amoellants. defendants below.
In a very recent case, that of Taber v. Missouri Pacific Ry. Co., not yet officially reported, but see 186 S. W. 688, it is stated that in the oral argument before the Supreme Court, the appellant for the first time contended that the facts in the case clearly show that the decedent was engaged in handling cars engaged in interstate commerce at the time of his death, and that for that reason the judgment should be reversed upon the appeal. It is further stated that in the. reply brief this same point was urged.
Mr. Commissioner Brown, who wrote the opinion adopted by the majority of the court in banc, says of this:
“The first question, therefore, is whether this point is now before us. The petition clearly states a cause of action founded upon the provisions of section 5425, of the Revised Statutes of Missouri of 1909, and asks the penalty therein imposed.”
Quoting the Federal statute (section 1, chap. 149, Act April 22, 1908, p. 65, 35 Stat. at L., sec. 8657, Compiled Statutes 1913), Commissioner Brown continues:
“No reason has been suggested why this petition does not state all the facts necessary to a recovery by these children under the Missouri statute cited. That it does not state a cause of action in favor of the personal representative of the deceased under the Federal statute is clear, for there is no statement of the vital fact that the injury was inflicted while the defendant was engaging in commerce between the states and territories, and while the deceased was employed by it in such commerce. It follows, from the statement in the petition of all the facts necessary to constitute a perfect cause of action under the state statute, that if it is sought to defeat it, by showing the additional facts that the injury was inflicted while the defendant was engaging in inter
Commissioner Brown notes that at the trial it was in evidence that 'one of the objects of the work in which deceased was engaged was in the making up of a train to go west from Kansas City, and that certain cars bore initials, the meaning of which were not explained, but of which counsel asked the court to take judicial notice. The learned Commissioner then says:
“If this testimony tended to prove that the appellant apd deceased were engaged in interstate commerce at. the .time of the injury, there was still an opportunity under the Missouri Code for the defendant to conform his answer to such evidence and to have the question submitted to the jury. Instead of doing this, he asked, and the court granted, its submission upon the theory, inconsistent with the terms of the Federal statute, that contributory negligence on the part of the deceased, constituted a complete defense to the action. To raise the question upon appeal the statute expressly required (R. S. 1909, sec. 2081) that it should appear in the record that it was submitted to the determination of the trial court, and was expressly decided against the appellant. There is nothing in the record indicating this. On the contrary, the appellant, after having availed himself of the defense of contributory negligence under the State statute and lost, is now seeking to recede, because, for the purpose of gaining this advantage, to which it was not entitled, it had concealed its real defense. . Having digged this pit, it.is- appropriate that the appellant should have been the one to fall into it. The question of the application of the Employers’ Liability Act (Act April 22, 1908, chap. 149, 35 Stat. 65) not having been decided by the trial court, no exception with respect to it can be taken here.”
The section of our statute referred to by Mr. Commissioner Brown (section 2081), provides:
It appears in the ease at bar, not only by the record proper but by the statement of the learned trial judge, which counsel for appellants has seen fit to bring before us as part of the record in the case, that no such proposition and point as now attempted to be raised for the first time in this court, was ever presented, considered or passed upon in the trial court. The opinion heretofore rendered is modified to some extent in its verbiage: in all other respects it will stand.
By the same line of reasoning and on the decisions cited, we hold that no constitutional question has been saved, and we conclude that no question as to the validity of the city speed ordinance ha,s been raised, because no such point was made in the trial court nor presented there for consideration.' Section 2081, Revised Statutes 1909, is just as applicable here as on any like situation. That is to say, no such exception was presented to and passed on by the trial court. We are forbidden by that section to notice an exception not .made in the trial court. While the argument of learned counsel for appellants is specious, it is not sound. We cannot consider the validity of the speed ordinances on this appeal for the conclusive reason that their validity was not attacked in the trial court in this ease.
It is well settled in our State that the question of whether a petition totally fails to state a cause of action, or whether the case is one within the jurisdiction of the court, is open for consideration on appeal, even if no attack has been made on it below, for the jurisdiction of the court depends on that. The latter was the situation in State ex rel. McEntee v. Bright, 224 Mo. 514. l. c. 527, 123 S. W. 1057. But that does not reach this case. Here the petition counts not only on the ordinance but on the statute. Even assuming that the ordinance is void, the petition is still good as counting on the statute.
The motion for rehearing and the motion to transfer to the Supreme Court are overruled.