165 Mo. App. 14 | Mo. Ct. App. | 1912
(after stating the facts). — I. Respondents’ counsel concede, and we are constrained by the decisions of our Supreme Court to hold, that the judgment must be reversed because the instructions for plaintiffs required the jury to find for the plaintiffs if they found that defendant’s negligent acts or omissions complained of “directly contributed to cause” the injuries of which plaintiff’s father died, instead of that such acts and omissions caused the injuries. "Where the pleadings and the evidence were substantially in the same state as in the case at bar like instructions have been emphatically condemned and held to be reversible error. [Hof v. Transit Co., 213 Mo. 445, 111 S. W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S. W. 78; Schmidt v. Transit Co., 140 Mo. App. 182, 120 S. W. 96; Wilson v. Transit Co., 142 Mo. App. 676, 121 S. W. 1083.] So far as their effect on this appeal is concerned, it is unnecessary to further discuss the instructions, but to avoid further error upon a retrial, the first and second instructions should be reframed, not only to avoid the error for which the judgment is reversed, but also so as to limit the jury, in their consideration of defendant’s negligence, to a consideration of the specific acts and omissions relied upon as constituting defendant’s
II. The real controversy between the parties on this appeal is as to whether the cause should be remanded, defendant’s contention being that the conduct of plaintiff’s father, as shown without conflict by their own evidence, in approaching the crossing at such a rate of speed that it was impossible to stop in time to avoid the collision after discovering the close proximity of the car, constituted contributory negligence per se as matter of law. Such conduct on the part of an ordinary traveler in a vehicle under ordinary circumstances has been held to be negligence per se as matter of law (See Wheeler v. Wall, 157 Mo. App. 38, 137 S. W. 631); but it does not follow that it is to be denounced as negligence under any and all circumstances. ‘ ‘ The true legal rule is that one approching a railway crossing must exercise reasonable and ordinary prudence to avoid the danger necessarily to be apprehended there” (Kenney v. The Hannibal & St. J. R. Co., 105 Mo. 270, 288, 15 S. W. 983, 16 S. W. 837); and it is elementary that the same act may be careful or negligent according to the variant facts and circumstances. This is true of the act of one approaching a railroad crossing as well as of the act of one in any other situation. As was said by our Supreme Court in Jennings v. St. Louis, I. Mt. & S. R. Co., 112 Mo. 268, 20 S. W. 490, concerning the rule requiring the traveler to look and listen, “such a general rule of conduct must have grown out of experience and observations that were common and ordinary; hence the rule, like most others, is not of universal application, but has exceptions under exceptional circumstances.” The case of Kenney v. Railroad Co.,
For the reason stated in the first paragraph of this opinion the judgment in the case at bar is reversed and the causé is remanded.