234 Mo. 657 | Mo. | 1911
— Plaintiffs sue defendant for the statutory penalty of $10,000; for the death of their minor son, Carl, grounding their action on negligence. A verdict came in for $8000; and from a judgment on that verdict defendant appeals, assigning error as follows :
(a) . In refusing defendant’s demurrer at the close of plaintiff’s case and again at the close of the whole case.
(b) . In giving plaintiff’s instructions 1 and 2.
(c) . In refusing instruction 7, 9 and 12 for defendant.
(d) . In ruling on the admission of testimony.
(e) . In ruling on the language and conduct of . plaintiff’s counsel in his concluding argument to' the jury.
(f) . In overruling the motion for a new trial (and herein that the verdict is excessive and indicates passion and prejudice).
Any record needful to make plain and determine assignments b, c, d, e, and f will appear when considering them in the course of the opinion.
As to assignment a it calls for a summary of the pleadings and facts, viz.:
The petition charges that defendant is a corporation owning and operating a street railway system in Kansas City, including a line on East Fifteenth street, run by electricity, each car manned by a motorman and conductor; that said street was a public street; that defendant owed certain duties to keep' from injuring persons using the street; that Carl Ellis was unmarried, the child of plaintiffs (who are husband and wife), aged about fifteen years; that while Carl, at about ten o’clock a. m. of September 5, 1906', was driving a delivery wagon eastwardly on said street where it intersects Bristol avenue, his wagon was run into by one of defendant’s cars and he was killed by the negligence of defendant’s servants and employees, viz., in not keeping the car under proper control, in not keeping a proper outlook for persons in a position of danger, in not giving proper warning to the deceased of the approach of the car and in not making proper effort to stop the car or reduce its speed as it approached the deceased. The petition next states a ground of recovery under the humanitarian rule in that defendant, its agents, and servants, failed to exercise ordinary care in the use of the means at command to avoid injuring the' boy after they either discovered him in peril or by the exercise of ordinary care should have discovered him in or going into a situation of peril.
The answer was a general denial, coupled with a plea of the contributory negligence of deceased.
No reply is shown by the record, but the trial proceeded as though one had been filed.
Of the facts.
Fifteenth street runs east and west in Kansas City. Bristol avenue runs north and south, stopping at Fifteenth. "Winchester runs north and south, and cuts Fifteenth street at right angles a block (300 feet) west of Bristol.' The place- of the accident was the intersection of Bristol and Fifteenth if the former had
■Plaintiff, George W. Ellis, kept a transfer barn on the south side of Fifteenth street, about a half block east of 'said intersection. He .owned and operated therefrom express wagons, and one' of those wagons was in charge of his son Carl. Carl Ellis was about fifteen years old and had for about a year worked for
Defendant put in evidence from one witness to the effect that a car under existing conditions of track, load, grade, equipment and speed, .could be stopped in one hundred feet. The conductor locates himself in the rear vestibule, and testified that his attention was first attracted by the sudden stop of the car, he felt the jolt, looked up and saw the motorman busy with his brakes. He had not seen the boy before that. The car ran thereafter probably fifteen feet, until it hit the wagon and then ran five or ten feet. This witness stated the car hit the wagon about the center. Another of defendant’s witnesses testified the car ran twenty feet after it struck the wagon. The motorman of the car testified for defendant that he was in position in the front vestibule, looking out east in front of him.
The foregoing is an outline of so much of the evidence as bears vitally on the demurrer.
I. The case was put to the jury by plaintiffs in their instructions alone on the humanity rule. That rule is a doctrine of the law, which, in one of its phases, casts liability upon a negligent street railway company whenever its servants, operating its car on a public street, see, or by the exercise of ordinary care could see, a street traveler in danger from the going car, and thereafter fail to exercise ordinary care in. the use of means at hand to avoid injuring, him, when such ordinary care, having regard to the safety of passengers, could have saved the traveler. While negligence always has misfortune for a companion, yet such traveler does not alone bear the burden in the law of that misfortune when he inadvertently goes into a place of danger from a street car so far ahead of it that those who control it may, under the circumstances and conditions given in the rule, save his limb or life. The joint right in the carrier under its easement and fran
Plaintiffs’ counsel cite a line of cases supporting that theory. As we gather the run and import of his argument,' learned counsel for defendant relies on an array of cited cases, which, he argues, in effect announce another or modified doctrine. "We will not expand this opinion by quoting from either array. They will be found following the head notes in the summary of the briefs prepared by our reporter in the printed case, and the inquirer may consult them.
We leave the proposition with these observations: It will be found on analysis that the discord in the cases so marshaled against each other is more seeming than real. In the present state of the law, there can be little controversy about it. The trouble is in applying it to the varying facts of the individual case.
The rule stated, of course, has its necessary complement, viz: When a person, out of danger, negligently moves from his place of safety to one of danger from an oncoming street car, so close to it and under such circumstances that his danger could not be reasonably apprehended by those in charge of the car (who see or might see Ms peril) in time to have saved him by the exercise of ordinary care, then the negligence of the traveler is either the proximate cause of his own injury, or, in case the element of defendant’s negligence be also present, then the negligence of the street traveler and the negligence of the carrier are coincident and concurrent — they (excluding the idea of comparative negligence) may be said to balance or offset each other. In either of which hypotheses there is no room at all for the application of the humamty rule. If a given case in that regard is so plain that
Assuming that Carl Ellis was sui juris and had arrived at an age chargeable with negligence for not looking westward as he approached the track, yet there was evidence tending to show that the motorman was running his car without such vigilant concern and watchfulness as the law imposes upon him to avoid injuring those coming within its danger zone. There was evidence that if he had been looking ahead of him he would have seen the boy with his back to the car slowly verging towards and then entering upon the track, in an attitude of evident obliviousness to the approach of the car and intent on crossing the track in front of it, heading towards his father’s barn. There was evidence tending to show that a car drifting down grade, with the equipment, size and load of this one and running on a track in the condition of this track, could have been stopped or checked in time, after his danger was obvious, to have let the boy cross in safety. As the duty of vigilant watch rested on the motorman, he is held to have seen what he might have seen. It is axiomatic that what one knows and what he ought to know are regarded in law as equivalent.
If. it be said that plaintiffs ’ testimony, directed to showing that the motorman was not looking ahead, 'was slig’ht, yet there was evidence of that sort, the weight of which was for the jury under their oaths as triers of the fact and not with us, who, sitting as a ■court of errors, deal in the main with the law, and
But the evidence as a whole in the controverted question of negligence on the motorman’s part was not slight. The motorman’s testimony has to be reckoned with on the last demurrer, and his testimony lends no little support to his negligence.- All sides agree that the horse was moving slowly. It is measurably conceded that the car hit the hind part of the hind wheel, and-that the horse and wagon were nearly 19 feet in length. The motorman himself testified that he stopped the car in from twenty-five to thirty-five feet after he applied the brake. That testimony is strongly corroborated by other witnesses, and the mere advisory testimony of defendant’s experts to the effect that it could not be done, in the face of the fact that it apparently was done, by no means presents a case for judicial interference. As we read the motorman’s testimony he does not well account for the fact that he failed to see this boy until he “started on the track,” whatever hé meant by that. What was he doing that he did'not see? But commencing with the time the boy and his equipage were in danger and going to the time when his wagon was hit, he traveled for such a length of time and for such a distance in plain peril that it may be shown by mathematical calculation that the car at its rate of speed could have been stopped, had the motorman been vigilant and diligent, in time to háve saved him. The car was going from three to four times faster than the horse. If the horse covered nineteen feet while the boy was in peril on the track, the car covered fifty-seven or seventy-six feet, agreeably to a speed of either six or eight miles per hour. This distance left an open field for full play to the humanity rule.
We are of opinion both demurrers were well fuled.
Defendant argues there is error in two of plaintiffs’ instructions — the first and second. Those instructions are as follows:
“1. If you find from the evidence that on September 5, 1906, the plaintiffs were husband and wife and that Carl Ellis was their natural born .child, that he was unmarried and about fifteen years of age, that on said day he was driving a one-horse wagon on East Fifteenth street, a public highway • of Kansas City, Missouri, that as he was crossing the track of said defendant at Bristol avenue said wagon was struck by an east-bound car of said defendant- and said Carl Ellis was thrown out of said wagon and upon or near the track and struck and run upon by said car and was so bruised and crushed that he died as a direct result of said injuries, and if you further find from the evidence that in crossing said tracks said Carl Ellis was in a perilous situation arising from danger of being struck by said car and that defendant’s motorman saw or by the exercise of ordinary care could have seen him in said situation of danger, and that thereafter said motorman was negligent, in that he failed to exercise ordinary care in the use of the means at his command to avoid said collision (if you find he so failed) and that said motorman with due regard to the safety of his passengers could with ordinary care in the use of said means have avoided said collision and that as a direct result of said failure- (if any) said wagon was struck and said Carl Ellis injured as aforesaid, then your verdict should be in favor of the plaintiffs, and you will assess the amount of the penalty at such sum, not less' than two thousand dollars and not more than ten thousand dollars, as you may in your discretion determine. And this you will do even though said Carl Ellis was negligent in crossing or going upon said*676 tracks without looking or becoming aware of the approach of said car.
“2. You are instructed that it was the duty of defendant’s motorman to keep a reasonable lookout for persons upon the track or approaching said track and going- into a situation of danger, and if you find that deceased was approaching said tracks and that he was unconscious of the approach of said car and that it was apparent to a reasonably prudent person that he was unmindful of danger and was going upon said track, then it was the duty of the motorman to at once have taken precaution to avoid the collision. ’ ’
(a) The vice of the first instruction in part is said to be there was no evidence to support it; and. that there was no evidence that the motorman saw or could have seen the boy in peril in time to have avoided the collision by the use of the means at his command. But we have heretofore’ruled both those contentions against defendant in ruling that the case fell within the humanity doctrine and, on the facts present, was for the jury.
The instruction is attacked from another side, viz., for its use of the word “tracks” instead of “track.” The argument is advanced that such plural form of the word was calculated to mislead the jury into believing that decedent’s peril began when he was crossing the north track. We must hold against defendant on the point for a group o.f reasons, viz.:
Its own given instruction (No. 8) used the plural in the same connection. Ergo, if error it was, it was common to both sides and became innocuous and non-reversible. Consensus tollit errorem.
Again, defendant asks an instruction (No. 6), refused because mandatory, using the plural form “tracks.” Wherefrom we infer defendants appellate theory of error, coiled up> in “tracks” was not its trial theory. The trial theory attends a case on appeal as a right warm frock of protection against any chill from
In the next place, the use of the plural form in the connection it was used was proper. The two tracks were close together, the car was running on the south track and there came a time while the boy was on the north track that his horse was on the south. From thence onward to the end, obviously, the boy was in a danger, imminent and about to fall. To tell the jury that “if you further find from the evidence that - in crossing said tracks said Carl Ellis was in a perilous situation, ’ ’ etc., was within the case made. It was put to the jury to find the danger, and certainly it was there to find.
Finally, it is said the instruction erroneously assumes the boy was not aware of the approach of the car and went upon the track without looking. On such premise, it is argued that this is too favorable to plaintiffs and excludes another theory, viz., that deceased looked and saw the approaching car, and in racing with death, lost the race. But the last hypothetical theory is not within the evidence, hence is not in the case. The eye witnesses agree the boy did not look west when he approached the tracks; contra, his face was steadily turned in another direction. The car was coming behind him until he turned to cross the tracks diagonally, and thereafter till the fatal moment it was coming from an angle substantially at his back. Every .eye that followed him to his death saw him looking steadfastly and sturdily to the southeast. It is not error to assume as true a conceded fact or one assumed as true on the record by the adversary parties. [Davidson v. Transit Co., 211 Mo. 320.] It would have been in better conventional form if the instruction had left it to the jury to find the boy negligent through a failure to look. But the whole case was tried below on both sides on the theory he. did not look or see the car, and it would not do to reverse the
The instruction, as a whole, under the facts present, properly stated the humanity rule which proceeds on the theory that decedent was negligent in not looking, and that his life should have been saved in spite of his prior negligence if, after being aware of his peril, defendant’s servants could have done so by the' use of ordinary care. It was not reversible error to give it. [Matz v. Railroad, 217 Mo. 281; Epstein v. Railroad, 197 Mo. l. c. 736; Kinlen v. Railroad, 216 Mo. l. c. 160, et seq.; Felver v. Railroad, 216 Mo. l. c. 212, et seq.; Waddell v. Railroad, 213 Mo. l. c. 16, and cases cited.]
(b) It is argued that the plaintiffs’ second instruction was bad, for that it proceeds on a bundle of assumptions, viz., that the motorman did not keep a lookout, and that the boy was unconsciously going into danger. Farther, that it is misleading in authorizing the jury to find a situation indicating that the boy was so unobservant as to at once charge the motorman with the duty of taking precaution and to assume that the inattention of the boy would continue too late to save himself.
Further that it invites the jury into a field of mere speculation and conjecture, is not supported by the evidence and is in conflict with instruction numbered 3 given for defendant.
On such several contentions, we rules as follows:
Instruction 3 for defendant reads: “If the deceased was negligent and such negligence directly contributed to his death, then there can be no recovery herein, and your finding must be for the defendant.” If that instruction means that the prior act of negligence of Carl Ellis in going upon the tracks without looking westward to see if a car was approaching, defeats recovery, although defendant’s servants, charged with a duty of vigilance in running their car
We have been unable to find the “assumptions” seen by defendant’s learned counsel. The first three lines do not hold them in embryo. Those lines merely announce the duty of the motorman and put it very temperately at that. The words “reasonable lookout for persons” are a very mild pronouncement of the rule. Cases might be cited that characterize the duty as one to keep a “vigilant watch”— e. g., Kinlen v. Railroad, 216 Mo. l. c. 156. It has been ruled that the vigilant watch ordinance of the City óf St. Louis is but the announcement of a. common law duty in congested urban populations. [Deschner v. Railroad, 200 Mo. l. c. 329.]
We see no invitation into a field of airy specula
There was no error in giving plaintiffs’ instructions numbered 2.
III. Of error in refusing instructions.
Defendant complains of refusing its' instructions 7, 9 and 12. Instruction 7 told the jury, in effect, that the motorman could rest on the assumption when he saw the boy approaching the track that he would stop and not go on the same; and that he owed no duty to give warning and either stop or check the speed of the car until there was actual danger of a collision. That was not the law of this case, where there was evidence tending to show to a reasonably prudent person that the boy, unconscious of his danger, was apparently intent on continuing his journey on and over the track. The instruction was well refused.
Refused instruction numbered 9 was a mandatory one to find for defendant if the jury believed from the evidence that the boy did not look or listen, when by looking he could have seen, or by listening he could have heard, the approaching car before going upon the track. That instruction is not the law of any case to which the humanity rule is applicable; for if such antecedent act of negligence shuts off liability, although by the exercise of ordinary care after I put myself in deadly peril, a motorman could save my life, then the humanity rule is exploded as a working theory of the law and all the learning thereon goes pellmell to the dust heap. The instruction was well refused.
Refused instruction numbered 12 told the jury there was' no evidence that a failure to ring the bell was the proximate cause of the accident, and that re
IV. Of error in admission and exclusion of testimony.
The rulings complained of are; (1) admission of testimony tending to show there was no crossing for teams in the region except the one used by decedent (and herein of the condition of the street at the locus in quo); (2) tending to show a failure to ring the bell; (3) directed to the incompetency of one Francis to testify to the speed of the car; (4) directed to the incompetency of one Hall to testify as an expert on the distance in which the car could be stopped; and (5) the refusal to admit two items of testimony on behalf of defendant.
(a) By one Dyche, it was shown that the pavement was fresh and green, that is, had just been grouted with cement slush; and that there was only one crossing for teams, viz., the one used by decedent, put in temporarily and laid roughly for such use. Some of this evidence showed teams were not “permitted” to cross elsewhere. Some of it, that teams were not in the “habit” of crossing except at that point. Some of it, that there was no crossing at that time for teams aside from the temporary one at Bristol avenue. Counsel lays stress on the idea that defendant could not control the actions of the city or private individuals, or the right of the citizen to cross and recross the street; therefore, should not be prejudiced thereby. But at root it was not so much a prohibition
(b)._ When plaintiffs’ testimony was going in, a part of it tending to show no bell was sounded as the car approached the crossing was objected to, as immaterial and not within the issues.
One of the allegations in the petition was that “no proper warning was given deceased of the approach of said car,” etc. The answer denied that averment. Therefore, the testimony was within the issues.
Under the humanity rule the duty of the motorman is graduated according- to circumstance. If he can warn and thereby save life, he should do so. If it be apparent that warning when made is, or if made will be, ineffectual, he should cheek his speed and stop if possible, out of tenderness to life and limb. If he had been warned by a sounding bell, this boy, though heading towards danger, might have been kept out of it (Cytron v. Transit Co., 205 Mo. l. c. 719, and cases cited); or if actually in danger, he might have quickened his pace and escaped by getting over. In this ease he was almost in safety, as the blow on the hind wheel shows. In any event, a warning is within the scope and meaning of clue care. But, and however that be, as plaintiffs abandoned the issue by asking no- in
(c) . A witness, Francis, had observed the running of street cars in Kansas City. He saw the speed of this car and was asked to put an estimate on it. His testimony was objected to because of lack of qualification. Under the doctrine of Stotler v. Railroad, 200 Mo. l. c. 123: et seq., and cases cited and reviewed, that objection was not tenable. However, the estimate of this witness did not vary materially from that by defendant’s. So that if Francis’s testimony be allowed some value, it could not have injured defendant in the state of the proof here. The point is disallowed.
(d) . It is next contended that one Hall, who testified in an advisory capacity as an expert for plaintiffs on the distance in which a car could be stopped at a given speed, equipment, load, grade and condition of track, was not qualified as an expert; hence his testimony should have been rejected. Defendant tried to have that done and failed. The conductor (for defendant) makés the car run fifteen feet after the motorman became busy with his brakes until it hit the wagon and five or ten feet thereafter. That amounts to saying the car was stopped after the brake-shoe dragged in, say, from twenty to twenty-five feet. The motorman (for defendant) makes it run from twenty-five to thirty-five. Hall, on a hypothetical question, said it could be stopped in from eighteen to twénty-fíve feet. His advice on the point so nearly agreed with some of defendant’s testimony that it is hardly worth while to consider the question of his competency as affecting the merits of the case. But we rule there was testimony showing he was qualified to speak as an expert. He had worked for defendant as a motorman on the street in question for eleven weeks on the same character of ear and was familiar with the equipment. He was not a seasoned veteran, whose advice had behind
We have held that when a car actually stops in a certain distance, there is no need of theorizing upon inability to stop in that distance. In such case an expert is functus officio. [Beier v. Transit Co., 197 Mo. l. c. 231 et seq.] Indeed, per Marshall, J., in Latson v. Transit Co., 192 Mo. l. c. 466-7, it was said to be “contrary to the physics of the case, and to the common knowledge of all men” to hold that a car going six or seven miles an hour could not stop> in eighty feet on a level street. That ruling amounts to abolishing the office of an expert under the circumstances stated in the Latson Case.
The premises all considered, we disallow the point to defendant.
(e)'. It is next argued there was error in excluding competent testimony. Defendant put on the stand one of its claim agents, Mr. Worthington, who testified favorably on its side. It seems he “investigated” this accident, interviewed the witnesses, and was instrumental in taking sworn statements from some, and in taking another eye-witness to defendant’s headquarters where he was interviewed. In the progress of his testimony, in view of his cross-examination, learned counsel undertook to show by him the custom of the company to investigate and the purpose and cause of that custom. That testimony was objected to and excluded. A tender was then made of proposed testimony, showing the custom existed, that its purpose was to determine whether the employees of the company were at fault, and upon that determination to adjust cases wherein the company finds itself at fault and to decline to adjust when not in fault. The testimony was calculated to draw the attention of the jury away from the real issues, and fasten it on a purely collateral matter, viz., the benevolent and just disposi
Y. Of error in the concluding argument of plcdntiffs’ counsel.
The bill of exceptions shows- that plaintiffs’ counsel commented, arguendo, on the motorman’s experience and qualification; for that he was shown to have been in charge of a car about one week and in actual service about half that time. (Nota bene: The motorman’s testimony justified that view of it). At this stage counsel for defendant asked the court to instruct the jury that the argument was improper and that there was no such issue in the pleadings. To .that request the Court responded by an inquiry to counsel,
Such record justifies the following observations:
Counsel did not in terms object to the remarks of adversary counsel, nor did he ask the court to rule them out as improper and to admonish or reprimand counsel. Hsually an objection to remarks during argument takes that form. But in this cáse the interpolation must be held to mean a request for an instruction to the jury. That instruction finally took form and substance in the one offered. The question then is: Was the instruction proper? We think the effect of that instruction in the form it. was offered would be to deny to plaintiffs’ counsel the right to comment on the testimony. The charge in the petition was that the boy’s death was caused “by the negligence, unskillfulness,” etc., of defendant’s servants. Inexperience is. the ' mother of unskillfulness and negligence. Without quoting further from the bill of exceptions, it is sufficient to say it shows that defendant, deeming the fitness of the motorman a proper matter of inquiry, went
VI. Finally, it is argued the verdict is excessive and the product of baneful influences, viz., prejudice and passion.
The verdict was within the limits ■ prescribed by the lawmaker. We cannot say it indicates passion and prejudice. Under section 5425, Revised Statutes 1909, the jury are to gauge the penalty at not less than $2000 nor more than $10,000. Between that minimum and that maximum, observe, the statute leaves it to “the discretion of the jury,” not to the discretion of the court. The lawmaker may ordain that the'discretion of the jury has play down or up between those two sums. [Young v. Railroad, 227 Mo. 307.] If it be that we have power to review the discretion of the jury under that statute (a proposition we do not decide in this ease), yet how are we to say its discretion was unreasonably exercised, absent any untoward matter reasonably inciting judicial complaint, or-provoking judicial discretion?
The .premises considered, the judgment is affirmed.