112 Mo. App. 496 | Mo. Ct. App. | 1905
(after stating the,facts). — We attach no importance to the failure of the motorman to ring the bell as his car drew near the plaintiff, granting that he
It is conceivable that if his attention had been drawn to the north-bound car, plaintiff might have leaped from his wagon, and on that theory some weight might be attached to the failure to ring the bell. But such a theory is not advanced nor was it contended for at the trial. Indeed, if we accept the plaintiff’s statement as to his engrossment in the effort to get his mule and vehicle out of the way, it is most unlikely that the thought of abandoning them would have occurred to him or been acted on if it had. As the case is presented on this appeal, not ringing the bell has no significance. Neither was the alleged failure of the motorman to keep a vigilant watch of consequence; for he testified that he saw the plaintiff one hundred and fifty feet or more away and in time to have stopped his car, had not plaintiff himself stopped and afterwards started forward again, thereby deceiving the motorman as to his (plaintiff’s) intention in regard
There is a little testimony, chiefly that of the motorman of the north-bound car, that plaintiff himself was to blame for getting into peril; but if he was, it was the duty of the motorman to prevent the accident if possible. On this branch of the case no clear instruction was given to the jury. Instruction D, with the modification made by the court, is nearly unintelligible. It is not easy to discern how it could prejudice the defendant if understood according to its tenor. But certainly it was unlikely to impart to the jury a clear understanding of
Besides the instruction v/e have copied, the defendant requested and the court refused one or two which told the jury that it was the plaintiff’s duty to look and listen for an approaching car before attempting to cross the track, and if the jury believed that by doing so he might have seen or heard the car and avoided the accident, the verdict must be for the defendant. It has been declared by the Supreme Court and by this court follow
As the case is for negligence only, our opinion is that the court should have omitted from its instructions E and F, the clauses stating that the plaintiff could recover although the jury might find his own negligent act directly caused or contributed to his injury. There have been recent utterances by the Supreme Court against the theory that a plaintiff can recover if his negligence directly contributed to the accident, if the defendant was neither reckless, wanton or willful. [Roenfeldt v. Railroad, 180 Mo. 551, 565.] We cannot assent to the proposition that a party whose negligence causes injury can recover from someone else, as instruction “E” said plaintiffs might. The instructions were complete with out said clauses and misleading with them. It was sufficient to tell the jury that if the plaintiff moved on the track, as the instructions assumed (that is, carelessly and without looking and listening for a car) nevertheless he might recover if the motorman could have stopped the car and averted the casualty. There is evidence in this case tending to convict the motorman of reckless or wanton misconduct, and we will not say there could be no recoveryqf plaintiff’s negligence directly contributed to his injury. There could not be if the motorman was simply negligent, but might be if he was wanton or willful. But it served no' useful purpose to require more of the jury than a finding that plaintiff carelessly drove on the track and that while he was there, the motorman
The judgment is reversed and the cause remanded.