109 Mo. App. 524 | Mo. Ct. App. | 1905
There are nice questions involved in this record. In order to elucidate the matter we will set out the material portions of the pleadings and copious excerpts from the testimony.
The petition contains three specifications of negligence. First, the operating of the street car in violation of the fifteen-mile per hour ordinance-, second, that the motorman, by the exercise of reasonable care and diligence, could have averted the injury; third, violation of the vigilant watch ordinance.
Omitting the formal parts, the petition is as follows :
“That on or about the twenty-ninth day of April, 1902, while plaintiff was walking upon said Utah street, at the intersection of said street and Jefferson avenue, and across defendant’s railway tracks, said street and, place being a public highway, where plaintiff had a. perfect right to walk, the agents and servants of the defendant, managing its said cars, operated upon said track, carelessly and negligently operated the same at a speed of about twenty-five miles an hour, or upwards, in violation of the city ordinance, granting to said defendant the right to operate cars upon said street by electric power, which ordinance prohibits the operating of cars upon said streets at said place at a rate exceeding fifteen miles per hour, and that in consequence of the violation of said city ordinance by said defendant’s agents and servants, in so operating said car at the rate of twenty-five miles per hour, or upward, and without fault on the part of plaintiff, said car was caused to strike and injure plaintiff as hereinafter stated; that the car that so struck plaintiff was in charge of a motorman in the employ of said defendant, and said motorman saw, of by the exercise of reasonable care might have seen plaintiff in imminent danger of being struck by said car, a sufficient length of time*532 before he was struck so that, by the exercise of reasonable care he might, and could have checked the speed of the car, and so have prevented it from striking and injuring plaintiff as hereinafter stated; but said motorman failed and neglected so to do, and the negligence of defendant’s said motorman in this behalf contributed to the injuries of plaintiff herein complained of.
“That, by the terms of subdivision 4, sec. 1760, article 6, chapter 23, of the General Ordinance Provisions, of the city of St. Louis, in force for many years last past, and still in force it was provided:
‘The conductor, motorman, gripman, driver, or any other person in charge of each car, shall keep a vigilant watch for all vehicles and persons on foot, and especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicle, the car shall be stopped in the shortest time and space possible.’
“That said defendant, in consideration of obtaining its franchise for operating electric street ears upon said Jefferson avenue, at said point, long before the injuries conplained of occurred, had agreed to keep, observe and be governed by said part of said ordinance above quoted, yet, in violation of said ordinance, and its said agreement, said defendant’s motorman, in charge of and operating its car on the occasion in question, failed to keep a vigilant watch for persons on foot, moving towards the track, and failed, on the first appearance of danger to plaintiff, to stop the car in the shortest time and space possible; that, as a fact, said motorman might and could, with the appliances and equipage upon said car and at his command, by the exercise of vigilance have checked the speed or stopped said car, after it was apparent that plaintiff was in imminent danger of being injured, and thus have avoided the injury to plaintiff, yet said motorman failed and neglected so to do, and this negligence upon the part of the motorman contributed to the injuries in question to plaintiff.
*533 “That in consequence of .said several acts of negligence upon the part of the defendant, and its agents and servants in operating said motor car, it then and there was caused to strike plaintiff with great force- and violence, knocking him down, breaking his left arm, breaking two of his ribs, and causing bruises and contusions on his body and head, injuring his back, causing a concussion and contusion of the brain, and injury to his nervous system, from which injuries he has suffered great bodily pain and mental anguish, and still suffers such bodily pain and mental anguish, and will continue to suffer such bodily pain and mental anguish for the rest of his life.”
Omitting the formal parts, the answer was a general denial and a plea of contributory negligence, as follows :
“Comes now the defendant in the above entitled ' case and for answer to the petition of the plaintiff filed herein denies each and every allegation therein contained.
“And, for a further answer and defense, defendant says that plaintiff’s alleged injuries were caused by his own negligence in going upon or so near a railroad track, on which a car was approaching, as to come in collision with said car at a time and place when and where plaintiff, by looking and listening, could have seen and heard the approaching car in time to have avoided collision with the same; but plaintiff, disregarding his duties in that respect, failed and omitted to look and listen for said approaching car, and by such neglect directly contributed to cause his said injuries. And having fully answered, defendant asked to be hence dismissed with its costs. ”
The injury for which recovery is sought befell plaintiff at the crossing of Utah street and Jefferson avenue, in the city of St. Louis. Jefferson avenue is a principal street in said city and runs north and south. According to the evidence it is fifty feet or more
The plaintiff, Herman Deitring, testified that he resided on Indiana avenue, near the place of the accident; that he was seventy-three years old, had been ill for two years and three months with a sort of fever, was feeble, a little deaf, and while out for a walk, came along the sidewalk on the north side of Utah street; when about twelve or fifteen feet east of Jefferson avenue he noticed the approaching street car one block south at the crossing of Jefferson avenue and Cherokee street; that he walked slowly and leisurely along at about the rate of two miles an hour, carrying his cane, until within three feet of the east rail of the east track on Jefferson avenue where he looked and listened for an approaching car. He tells this part of the story in the following language:
“Q. How near were you to the railroad track when you stopped and looked? A. In about three feet.
“Q. Was there any car coming from the north? A. No, sir.
“Q. What hour in the day was it? A. Between nine and ten.
*535 “Q. And you say you did see a ear coming from the south? A. Yes, sir.
££Q. And when you stopped to look, three feet from the track, how far was that car south of you? A. Well, about one hundred and fifty feet, maybe not quite that much.
“Q. About one hundred and fifty feet; now, could you tell from where you stood looking the direction the car was coming right down the track, how fast it was coming? A. No, sir, I couldn’t tell, the car running to me, how fast it was.
££Q. Facing a ear coming toward you, you can’t tell how fast it is coming? A. No, sir, but I supposed it wasn’t going any faster than fifteen miles an hour, for I knew they had no right to run faster than that.
££Q. ' What did you do after stopping three feet from the track and looking and seeing the car coming; what did you next do ? A. What did I do ?
££Q. Yes. A. When I seen the car was that distance from me, I seen it and I commenced walking to get across the track.
“Q. About what gait did you walk? A. Well, like an old man; I couldn’t walk very fast.
<£Q. About how many miles would you walk an hour? A. Well, say about two miles an hour.
‘ ‘ Q. Do you know how wide the railroad track is ? A. .1 suppose it is about five feet.
££Q. Across? A. Yes, sir; from rail to rail.
££Q. Now, after you started across the track did you become conscious that the car was coming down on you at a rapid speed before it struck you? A. Yes, sir, I was trying to do the best I could to get across.
£ ‘ Q. You don’t understand; I am asking you if before the car struck you, you knew the car was going fast, before it struck you? A. Yes, sir.
££Q. How quick before it struck you? A. Well, I couldn’t just say how much I couldn’t say just how much.
*536 “Q. Where did it hit you? A. Hit me on my left side.
“Q. Now, after you started across the track you were three feet from the track when you started across ? A. Yes, sir.
“Q. And you say you didn’t know the speed the car was going when you started across?
“Objected to by Mr. Norton, leading.
“ Q. Well, did you know how fast the car was going when you looked and saw it coming? A. No, sir.
“Q. And you started across the track? A. Yes, sir.
“Q. And you had eight feet to go to get across? A. Yes, sir.
‘ ‘ Objection.
“Q. You had three feet to the track? A. Outside the rail.
‘ ‘ Q. And five feet after you got on the track, and you walked at the rate of about two miles an hour? A. Yes, sir.
“Q. Where was you when the car struck your shoulder A. I just had my foot on the last rail.
“Q. The last rail to get across? A. Yes, sir.”
The injuries received by plaintiff were numerous, severe and permanent.
On the part of plaintiff, John Helm testified that he was forty-two years of age, resided in- St. Louis where he was born and raised; he had known Jefferson avenue many years; on the morning plaintiff was injured (April 29, 1902) he was at the southeast corner of Jefferson avenue and Utah street facing north; hé saw the plaintiff walking west on the north side and crossing the street, carrying a cane, before he saw or heard the car; he looked like he was out for a walk or airing; that he heard the car but di'd not see if until it was opposite him; then Deitring was in a pretty dangerous position between the tracks; the car was forty or fifty feet from Deit
Louis Motts, on the part of the plaintiff, testified that he heard the noise of the car which attracted his attention; he saw Deitring walking, saw the car when it was about five feet from him, and after the car
To further sustain the issues on his part, plaintiff introduced in evidence, over the objection and exception of the defendant, certified copies of the ordinances pleaded in the petition and a deed from the Southern Electric Railroad Company to the United Railways Company and the lease from the United Railways Company to the defendant, showing that defendant had succeeded to the rights and obligations of the Southern Electric Railway Company.
At the conclusion of the plaintiff’s evidence the defendant requested the court to give the following instruction :
“Admitting all the evidence offered in the case to be true, he is not entitled to recover in this action and your verdict must be for the defendant.”
The court declined to give this instruction. Defendant saved an exception and asks us to review the court’s action thereon.
The defendant had the undisputed right to run its cars on its tracks at this point at a rate not exceeding fifteen miles per hour. It had no right to operate its cars at a rate of more than fifteen miles per hour. [Riska v. Railroad, and other authorities supra.] The operation of the car at a rate of speed exceeding fifteen miles per hour was negligence per se. [Murray v. St. Louis Transit Co., 108 Mo. App. 501; Hutchinson v. Railway, Weller v. Railroad, supra; Sepetowski v. Transit Co., 102 Mo. App. 110, 76 S. W. 693; Jackson v. Railway, 157 Mo. 621, 58 S. W. 32.] But while plaintiff had the right to use the thoroughfare, he was charged with the obligation of exercising due care and caution on his part and with the duty of looking and listening for approaching cars before crossing said tracks, in order to avoid probable collision and, if upon looking and listening he discovered an approaching car in such immediate proximity as to threaten his safety while running at a rate of fifteen miles per hour, he would be negligent and inexcusable in going upon defendant’s tracks under those circumstances, or if he discovered an approaching car which he knew, or by the exercise
The last chance doctrine is thoroughly settled in this State. It is well defined by this court, speaking through Bland, P. J. ‘ ‘It is a settled rule in this State, that though the plaintiff negligently placed himself in a perilous position by driving on or near the track, the motorman operating the car owed the plaintiff the duty of trying to avoid injuring him and plaintiff’s previous negligence did not bar a recovery if the injury resulted from the negligence of the motorman in not stopping or checking the car.” [Sepetowski v. Transit Co., 102 Mo. App. l. c. 119, 76 S. W. 693; Morgan v. Railway, 159 Mo. 262, 60 S. W. 195; Hutchinson v. Railway, 88 Mo. App. l. c. 383.]
The trial court, in passing upon the demurrer, should have placed the most favorable construction possible on plaintiff’s theory of the evidence, allowing to plaintiff, as a presumption, every inference that could be reasonably deduced from the evidence in his behalf. “The court can decide the issue as a matter of law, when all the facts bearing on it are undisputed, and reasonable men could not differ in their inferences from the facts. But when the facts bearing on the issue are disputed, or when they are undisputed, but admit of different constructions and inferences, it must be left to the jury.” [Berry v. Railway, 124 Mo. l. c. 244-245, 25 S. W. 229; Marshall v. Schricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101.] Under these rules, the trial court acted properly in overruling the demurrer.
This is clearly a case for the jury. Plaintiff had a right to cross the street. His only obligation was to look and listen for an approaching car and conduct himself with that degree of care and caution usually exercised by an ordinarily prudent man under like cir
Appellant contends that this case falls within the decision of the case of Guyer v. Railroad, 174 Mo. 344, 73 S. W. 584. We do not agree with this. In the Guyer case, first, there was no evidence that the engi
Counsel for the appellant have directed our attention to the case of Reno v. Railroad, 180 Mo. 469, and insist that it is controlling here against plaintiff. That case is not in point. The plaintiff in the Reno case testified that she looked and listened for a car but saw none and it was admitted that had she looked' she could have seen a car two blocks away. It was a plain open view and seeing no car she went on the track and was injured. The Supreme Court says: ‘ ‘ From the testimony of plaintiff, and that given in her behalf, one of two inferences must be drawn, either that plaintiff-saw the car and attempted to pass in front of it, or that she did not look for the car’s approach and attempted to cross over the tracks in disregard of it, and in either case, she was guilty of negligence which at least con
On behalf of the defendant O. PI. Hicks, the motorman testified that he espied the plaintiff fifty feet before he reached Utah street; that when he came within thirty feet of Mr. Deitring he put on the brake and reversed, used the sand, and rang the gong at the same time; that when fifty feet away he noticed Deitring about eight feet from the rail; that he threw off the power and tightened the brake; that Deitring never stopped, that he did not see the car and was going with his head down; that he saw Deitring’s intention was to cross the track and when he got within thirty feet of him he was then about three feet from the east rail;
The conductor, Thomas Cams, testified that upon crossing Cherokee street he gave the motorman two bells to go; that as the car got to Utah street, on the near crossing, the car was going north; that then the car was reversing as he could tell, being a conductor, that he was jerked back a little and was then facing the west; that he was looking northwest and just caught Mr. Deitring as he was struck; that he saw the body of the car strike him; that he was turned around a little biit did not fall but staggered about eight or -ten feet on the west track and sat down; that it is possible,-ordinarily, to stop a car in an emergency in at least two car lengths.
At the conclusion of all the evidence the defendant asked the court to peremptorily instruct the jury that upon the whole case the finding must be for the de
The court submitted to the jury, under proper instructions, the question of negligence assigned in the petition against defendant and the contributory negligence of plaintiff alleged in the answer. The different theories were presented in clear and well worded instructions. Appellant does not criticize any of the instructions given on the part of the plaintiff save two, and complains of the refusal of the court to give two only of defendant’s instructions as asked, and to the giving of the same in their modified form. Other than these, no objection is made to instructions given or refused on either side. These objections will be considered in their order. The court instructed the jury, among other things, ‘ ‘ that even if it believed from the evidence that plaintiff negligently placed himself in a dangerous situation, yet if the defendant’s motorman operating its car saw or by the exercise of reasonable care might have seen plaintiff upon the street and in the act of passing over defendant’s track and in a dangerous situation in time to have avoided injuring him by the exercise of ordinary care but that he negligently failed to do so, then its verdict should be for the plaintiff.” This was a proper declaration of the last chance or humanitarian rule. The jury found a verdict for plaintiff. The evidence introduced on the part of the defendant tended to show that the defendant’s motorman was negligent. The motorman said he could stop a car running at a speed of eight or ten miles an hour in one and one-half car lengths. The conductor said in two car lengths. The motorman said that all the appliances on this car were in good order. It was very light, only one passenger aboard, and the motorman testified he used every endeavor to stop the car, yet it ran one hundred and fifty feet after the collision before it was possible to stop it. He also testified that it would require
Appellant contends that the court erred in refusing the following two instructions asked by the defendant and by giving the same in a modified form:
“1. Although you may believe from the evidence' that the car was being operated at a speed exceeding fifteen miles per hour, and that the defendant’s agents in charge of said car failed to observe that the plaintiff was in danger of being struck by the car, still, if you further believe from the evidence that the plaintiff, hy looking and listening, could have seen or heard the approaching car in time to have stopped before going on the track over which it was running, and thereby have avoided the injury, then your verdict must be for the defendant.
“2. Even if you do find from the evidence that the motorman in charge of the ear saw the plaintiff was going upon the track in front of the car and could, by the exercise of care on his part, have stopped the car before reaching plaintiff, yet, if you further find from the evidence that after said motor-man knew plaintiff was going on the track the plaintiff*550 knew, or, by looking or listening for tbe approaching car, conld have known of its approach, and that it was not likely to stop before reaching him and that he could then have desisted from stepping on the track in front of said car and thereby have avoided the injury, then your verdict must be for the defendant.”
The court acted rightly in refusing the two instructions above set out. The purport of each of these instructions was to tell the jury that although the motorman saw plaintiff either going upon or upon the track in time for him to have checked the speed of the car and averted the injury, and even though the car was running at a negligent rate of speed, the plaintiff could not recover if they found he had not looked and listened for a car. This is not the law of this State. These instructions, as asked, conflict with the law as laid down in other instructions given on the part of both plaintiff and defendant. They were clearly in conflict with the humanitarian or last chance doctrine which requires the defendant to use due care after seeing plaintiff in a dangerous situation even though plaintiff was a trespasser. The instructions as asked would have told the jury that if it found plaintiff had not looked and listened, he could not recover even though defendant’s motorman wantonly and recklessly ran him down and inflicted the injuries complained of. The instructions ignore the uncontradicted testimony of plaintiff that he looked and listened within three feet of the track, saw the car but could not discern so as to appreciate its negligent rate of speed and went upon the track relying upon the car running at a lawful speed. The court very properly refused both. The court modified the two instructions as asked by adding to each “and that plaintiff did not stop and look and listen before going on the track, then your verdict must be for defendant, ’ ’ and gave the same as modified. There is no rule of law requiring plaintiff “to stop and look and listen.” He is required to “look and listen” but not to “stop.”
“Mr. Norton: I object, if the court pleases, until it is shown that it was either a part of the original franchise, or that it was accepted by the defendant.
“Mr. Taylor: I propose to read the acceptance; I will first read the ordinance.
“Mr. Norton: Well, I object to it, if the court please; this shows an acceptance by the Southern Railway Company and not by this defendant.
“Mr. Taylor: I trace the line of title this way: The Southern Electric Railway obtained this right, and conveyed all its right and all its franchises to the United Railways Company, and the United Railways Company leased all its right to the Transit Company; and the Transit Company exercises its right by the franchise.
“ Mr. Norton: In order to keep the record straight, I object to the ordinance and the acceptance of the Southern Electric Railway Company.
“The Court: The objection is overruled.
“To which ruling of the court, defendant then and there excepted and saved its exceptions.
“Mr. Taylor: This ordinance is duly certified to by the City Register, and under the Statutes of this State is admissible in evidence. I am offering the ordinance with its certification, and a certified copy of the*554 acceptance of this ordinance by the Southern Electric Railway Company.
“Mr. Norton: We object to that, if the court please, for the reason stated; it is a different corporation from the one here, and no acceptance of the defendant.”
The objection now made against this ordinance was not raised by appellant in the motion for new trial: it is an afterthought. Both plaintiff and defendant treated the ordinance as applying to defendant’s cars at tbe point named. The case was tried upon that theory.
The defendant asked and the court gave the following instructions:
“The actionable negligence charged in plaintiff’s amended petition is:
“1. That the defendant’s agents in charge of the car carelessly and negligently operated the same at a speed of about twenty-five miles an hour or upwards, in violation of the city ordinance read in evidence, which the petition alleges defendant, in consideration of obtaining’ its franchise for operating electric street cars upon Jefferson avenue at the point of the alleged injury to plaintiff, had long before the alleged injury to plaintiff agreed to keep, observe and be governed by said part of said ordinance read in evidence.
“2. That the motorman in charge of said car saw, or by the exercise of reasonable care, might have seen plaintiff in imminent danger' of being struck by said car a sufficient length of time before he was struck, so that by the exercise of reasonable care he might have and could have checked the speed of the car and prevented injury to the plaintiff; but the said motorman failed and neglected so to do and said motorman’s negligence in that behalf contributed to the injuries of the plaintiff.
“Before the plaintiff can recover upon either of these alleged acts of negligence he must establish the*555 same by a preponderance of the evidence. It is not sufficient for the plaintiff to prove merely the fact that he was struck by the car, but he must prove by a preponderance of the evidence that his ‘alleged .injuries were solely caused by the acts of negligence herein set out, and unless the plaintiff has shown by a fair preponderance of all the evidence in the case that one or the other of the acts of negligence herein set out, or the two in combination, solely caused the plaintiff’s injury, then your verdict must be for the defendant. It is not sufficient to entitle plaintiff to recover that one or both of said alleged acts of negligence contributed to some other cause not being the sole proximate cause of the injury.”
By these instructions given at defendant’s request, the issues arising by virtue of this ordinance were submitted to the jury and defendant can not now be heard to complain of an alleged error which it invited the court to commit, “the law being well settled that on appeal parties litigant may be confined to the cause they adopted on the trial.” [Mitchell v. Railway, 97 Mo. App. l. c. 425, 76 S. W. 647; Hill v. Drug Co., 140 Mo. 433, 41 S. W. 909; Stewart v. Outhwaite, 141 Mo. 562, 44 S. W. 326; Pope v. Ramsey, 78 Mo. App. 157; Strother v. DeWitt, 98 Mo. App. 293, 71 S. W. 1129.]
Appellant objected on the trial to the introduction of the ordinance in evidence on the ground that it was only a copy and, under the statute, it must be certified by the city register and not by his deputy. Upon an examination of the record, we find that this objection is based upon a mistake of fact upon the part of appellant’s counsel. The copy of the ordinance introduced is properly certified by P. R. Fitzgibbon, register of the city of St. Louis, under his hand and the common seal of said city. There is no merit in this objection. A certified copy of the record in the office of the city register of St. Louis showing the resolutions of the board of directors of the Southern Electric Railroad
Plaintiff introduced a deed of conveyance from the Southern Electric Railroad Company to the United Railways Company and a lease from the United Railways Company to the defendant St. Louis Transit Company, all of which conveyed the .tracks, cars, appurtenances and franchises formerly owned and exercised by the Southern Railway Company and its grantee, the Southern Electric Railroad Company at the point of the injury to the United Railways Company and by it to the defendant. Plaintiff’s counsel stated at the time, that he introduced the deed and lease for the purpose of ‘1 showing that the Southern Electric Eailroad Company, which accepted that ordinance, conveyed all its interests in this and all its railways to the United Railways Company and by the lease that company conveyed
Appellant objected, and now objects, to these conveyances “because it had not been properly shown that the ordinance had been accepted. ’ ’ Under the view we take it was not necessary for the ordinance to have been accepted, hence there is no inerit in this contention and it is overruled.
Appellant contends that there was error committed by the trial court in giving instructions numbers three and five on the part of the plaintiff over the objection and exception of appellant. These instructions are not incorporated in the abstract and for this reason we decline to review them.
There being no reversible error in the record, the judgment is affirmed.