174 Mo. App. 126 | Mo. Ct. App. | 1913
This is an action to recover the value of an automobile belonging to appellant, which was struck by two of respondent’s street cars at a public street crossing in the city of St. Louis and demolished. The cause was tried before the court and a jury, resulting in a verdict for defendant, and plaintiff appeals.
It appears that on January 5, 1908, at about 6:30 p. m., a young man was riding in and driving plaintiff’s automobile and was proceeding in a southerly direction along Clarendon avenue, a public street in the city of St. Louis, approaching the intersection of said street with the street railway tracks of defendant.
Plaintiff pleads what is known as the “vigilant watch ordinance” which provides that those operating the car shall keep a vigilant watch for all vehicles and persons on foot, either on the track or moving toward it, and on the first appearance of danger to such vehicles or persons, the car shall be . stopped in the shortest time and space possible; which ordinance also provides that all street cars after sunset shall be provided with signal and headlights, and that no car shall be drawn or propelled át a speed greater than fifteen miles per hour in that portion of the city in which defendant’s car was being operated at the time. And plaintiff charges that the defendant’s employees and agents in charge and control of its car negligently and unlawfully ran and operated the car, as it approached Clarendon avenue, “at a very high, negligent and unlawful rate of speed, to-wit, at the rate of about twenty-five miles per hour.” It is also averred in the petition that it was dark at the time, and that defendant, its agents and employees, negligently failed to have any headlight or other signal light
The answer is a general denial, coupled with the averment .that whatever damages, if any, plaintiff sustained, were caused by the negligence and carelessness of plaintiff’s driver in charge of plaintiff’s automobile. The reply denies the allegations of the negligence of plaintiff’s driver contained in the answer.
Inasmuch as the assignments of error pertain only to the giving and refusing of instructions, it would serve no useful purpose to review the evidence further than to refer to such portions thereof as are material to the questions before us, and which we shall do in considering the instructions in the case.
At the close of plaintiff’s case defendant, after offering a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court, stood upon its demurrer and offered no evidence.
I. The first error assigned is the refusal of the court to give, as offered, an instruction at the request of plaintiff, to the effect that if the jury believed from the evidence that the agents and servants of defendant in charge and control of its car failed to use and exercise ordinary care in the operation thereof, under the existing circumstances, “either by operating said car at an excessive rate of speed having regard to the crossing which it was then approaching, or by failure to sound a gong or ring a bell or give some
The court refused to give this instruction as offered, but modified it by striking out the words which we have italicized above, and gave it as modified. Appellant insists that this was error. His contention in this regard is, that there were facts and circumstances in the case from which the jury might have properly inferred that the motorman was not keeping a vigilant watch, or was negligent with respect to stepping the car, and that plaintiff was therefore entitled to go to the jury upon this assignment of negligence, as well as upon those embraced within the instruction as given.
Appellant says that the vigilant watch ordinance is declaratory of the humanitarian doctrine, and respondent says that this is correct; but from an examination of the evidence we are of the opinion that this doctrine has no place in the case, and that a recovery cannot be had upon the assignment of negligence in question. There was evidence of negligent speed of the car, of failure to have the car equipped with a headlight or signal light, and of failure to sound a gong or give other warning of the approach of the ear, sufficient to take these questions to the jury; and they were submitted to the jury by this instruction. We think, however, that the evidence failed to bring the case within the rule entitling plaintiff to have submitted to the jury the question of the negligence of defendant’s agenta and servants in charge of its car in failing to keep a vigilant watch or in failing to stop
As we have said, the tracks curve on both sides of this crossing, and plaintiff’s evidence shows that there was a building on the corner of the street, at its intersection with defendant’s right of way, obstructing the view to the east until one is within a few feet of the track; that, due to the obstruction and the curvature of the tracks, one approaching the track from the north, as was plaintiff, could not see a car approaching from the east at any great distance. The most favorable view of the testimony of plaintiff’s driver is that, after one passed the building line, he could see a car to the east one hundred feet from the point of the collision, and consequently this must be taken to mean that the motorman could not have seen the automobile in a position of danger more than about one hundred feet from it. The testimony of plaintiff’s driver was that defendant’s car was running from twenty-five to thirty miles per hour. The testimony of the other witnesses throws but little light upon the question of the speed of the car. Miss Bessie Turner, who was an occupant of the automobile, testified that the car was going very fast. Another witness testified that he saw the car just about the time that it struck the automobile, and he judged that at about the time of the collision it was going fifteen to eighteen miles per hour. His testimony however affords no satisfactory basis from which to determine.the speed of the car when it was about one hundred feet away.
There is no actual testimony whatsoever that the motorman was not keeping a vigilant lookout, or did not use every effort to stop the car after the danger became apparent; and the question is purely whether, from the facts and circumstances in evidence, it could be inferred that the motorman was negligent in either respect. Such inference could only be drawn from the fact that he did not stop the car in time to avoid the
Upon this question we cannot do better than to quote from the opinion in Dey v. United Railways Co., 140 Mo. App. 461, 120 S. W. 134, concerning the application of the so-called humanitarian doctrine to a like situation, where this court speaking through Nortoni, J., said:
“From the doctrine thus stated, it is obvious that it may not be invoked in any case unless it appears that defendant could have averted the injury after the injured person is either seen, or by the exercise of ordinary care could have been seen, either in or about to come into a position of peril. Therefore, where it is obvious that the motorman could not have averted the injury after the perilous situation of the plaintiff was revealed, or might have been discovered by him by the exercise of ordinary care to that end, the doctrine of the last clear chance does not obtain. [Roenfeldt v. St. L. & Sub. Ry. Co., 180 Mo. 554; Rissler v. St. Louis Transit Co., 113 Mo. App. 210; Boyd v. Wabash Ry. Co., 105 Mo. 371.] . . . There is
In this connection see, also, Markowitz v. Railroad, 186 Mo. 350, 85 S. W. 351; Theobald v. Transit Co., 191 Mo. 396, 90 S. W. 354; McGee v. Railroad, 214 Mo. 530, 114 S. W. 33; Ellis v. Metropolitan Street Railway, 234 Mo. 657, 138 S. W. 23; Burge v. Railroad, 244 Mo. 76, 148 S. W. 925; Hawkins v. Railroad, 135 Mo. App. 524, 116 S. W. 16.
It is true, as appellant suggests, that although defendant’s agents and servants used every effort to avoid the injury after, discovering the dangerous position of plaintiff’s automobile and found it impossible to do so, nevertheless that will not excuse the defendant, if its agents and servants were guilty of prior negligence which created the impossibility. That is to say, if the motorman was unable to stop the car because of negligence in running it at an unlawful rate of speed, thereby disabling himself from so stopping it, defendant is not excusable from liability. [See Williams v. Railroad, 149 Mo. App. l. c. 491, 131 S. W. 115, and cases cited.] But this does not affect the question before us; for the instruction with which we are dealing authorizes a recovery on the ground of the negligent speed .of the car, thereby submitting this question to the jury.
The contention is also made that “no expert testimony was necessary to show that, if the car had been under such control and proceeding at such a reasonable rate of speed, as the dangerous character of the crossing required, it could have been stopped in time
Our conclusion is, that the court did not err in modifying plaintiff’s instruction in the manner indicated above. This also disposes of the assignment of error with respect to the giving of an instruction for defendant to the effect that plaintiff was not entitled to recover on the assignment of negligence which we have just been discussing.
II. The remaining assignment of error pertains to the giving of an instruction offered by defendant telling the jury that it was the duty of the driver of plaintiff’s automobile to look and listen for the approach of cars before going on the track, and that if the jury found from the evidence that, when the driver approached the track, “if he had looked he could have seen the car approaching, or if he had listened could have heard the car approaching, and that he drove upon the track without looking, or, if he did look, without heeding what he saw, and without listening, or without heeding what he heard,” then plaintiff was not entitled to recover.
Appellant urges that this instruction should not have been given, for the reason, as he says, that con
We think that there was no error in giving this instruction. The pleadings made the question of the contributory negligence of the driver of plaintiff’s áutomobile an issue in the case. It was, of course, an affirmative defense, and the burden of establishing it was on the defendant. Nevertheless in carrying that burden it was not essential that defendant introduce testimony of its own. If plaintiff’s own proof tended to establish such contributory negligence, it was available to defendant in support of the allegations of its answer. And we think that it cannot be said that there was no evidence in plaintiff’s case of the driver’s contributory' negligence. , Plaintiff seems to have recognized that there was evidence from which it might be inferred that plaintiff’s driver was negligent in the premises, for plaintiff very properly submitted that issue in the instruction which it requested the court to give. Plaintiff’s driver testified that he knew the tracks crossed the street at this point. . They were of course a signal of danger, and the law imposed upon him the duty of looking and listening before going upon them.
While there was direct testimony that the driver looked in both directions, and listened, before going upon the tracks, there were circumstances in evidence from which the inference may be drawn that he did not look and listen, or did not heed what he saw and heard. It appears that the building which obstructed the view to the east stood some ten or twelve feet back from the tracks. The driver of the automobile testified that after passing the building line one could see a car from seventy-five to one hundred feet away. He further testified that the automobile was going very slowly — about three or four miles per hour — and
A careful examination of the record reveals no reversible error, and hence the judgment of the circuit court must be affirmed. It is so ordered.