*1 1920. Railway Joseph Hale v. Co. St. simply 665.]
S. W. intеntion not be defeated This should awkwardly expressed by an unlearned because it scrivener. judgment court Small
The of the circuit is affirmed. and concur. Broivn, GO., foregoing opinion
PER of Ragland, CURIAM: The adopted opinion as the of the All C., court. of the judges except sitting. concur, Elder, </.,not Appellant, HALE, M. STEPHENS v. ST. JOSEPH HEAT & POWER RAILWAY, LIGHT, COMP ANY. One, April 9,
Division City 1. PERSONAL INJURIES: Street Car: Ordinances: Humanitar- against company ian Doctrine. In an action a for car injuries personal one suffered collision between a wagon, appeared plaintiff’s company’s ordinances cars and it that city provided occurred that of the collision vigilant every keep for all vehicles should a watch driver moving persons it, on at or towards or near track appearance in the shortest should the car the first gong every space possible, have that car should a time and quick gong rung be succession should plaintiff, carriage appeared any team, person. It that also slowly wagon driving aged man, out of his an an alley laid, and there which the tracks were street on into approaching car, though nothing to obstruct the of the view see or hear until it was did not testified that he going ten nine or his car was testified that The motorman him. wagon plaintiff’s hour; horse and he saw that as as soon an miles speed gong, his or sound the not slacken sounded eight gong quick or ten where until within feet succession track, was five plaintiff’s that the horse horse crossed beyond wheel car hit the hind track. six feet Plaintiff testified that the horse out. and threw exceeding speed a fast walk. Witnesses aat time noatwas they gong Hela, sounded. heard no testified question presented as whether for the evidence vigilani succession, kept sounded the motorman stopped time and shortest his car for the watch required danger, appearance possible space the first after the humanitarian doctrine. the ordinance MISSOURI, COURT OF SUPREME Hale v. Company’s Duty Vigilant.
2. NEGLIGENCE: Car to he The fact may guilty driving looking, looking carefully, a street oar track without an *2 approaching company duty does not the relieve of its under viligant require gong, keep ordinances which to sound its it a danger appearance persons the first of to watch approaching the street the track. 3. CONTRIBUTORY NEGLIGENCE: Humanitarian Doctrine. The fact plaintiff may guilty contributory negligence that of going upon damages in street a car track does not take case for his jury; from the the humanitarian doctrine is based idea the may negligence guilty contributory that the of be may still recover. City Vigilance Requiring 4. CONSTITUTIONAL LAW: Ordinance in Operating by Street Cars. It well settled the is decisions of city impose upon court ordinances are valid which operating city keeping motormen in street cars the the of vigilant persons moving it, a watch for on the track or toward ;on stopping appearance danger and of the car the first in space ringing possible, gong quick time shortest and of in approaching any person. succession on team or Apparent Awaiting vigil- 5. TIMELY WARNING: Peril. Under delay ant in watch the motorman ordinance evidence cannot sounding gong quick persоns, of his succession until teams actually going upon approach- vehicles are the track in front of ing position danger; street car or are in an actual he must give timely ap- warning take action them affirmative to of his proach. Regulating Management 6. INSTRUCTIONS: Ordinances of Street against company Where, Cars. action re- an a to injuries alleged damages personal cover have been suffer- through company’s servants, appears ed manage- city regulating controlling ordinance are there looking requirements imposing company’s ment cars and safety persons property, given instructions which given ignore requirements erroneous; are these are sucn defendant, authorize a verdict for defendant on behalf of the that, requirements, requiring these fact without observance given authorizing part on the are other instructions requirements recovery were violated cure if the him does the error.
Appeal Circuit from Buchanan Court.—Hon. L. A. Judge.
Vories, Reversed remanded. 1920. Boyer appellant.
John 8. 1 is erroneous. It instruction sets Defendant’s duty for the motorman than that different measure vigilant requiring prescribed watch ordinance in the moving persons track, towards for requiring vehicles rung quick be succession on person. any carriage approaching instruction This sounding quick the motorman excuses danger. not the actual This is until there is succession warning signal requires The ordinance law. person whether
succession on per signal purpose very is warn a of a or not. The danger. may This instruction avoid son so pur plaintiff’s It 2, instructions conflict ports verdict, and directs a cover whole case *3 proven negligence. ignores alleged Hovarka of and acts instruction 441. Defendant’s v. Transit 191 Mo. Co., purports whole case and 2 It to the is erroneous. cover proven alleged acts of a omits' directs verdict entirely negligence negligence per omits the of se. It gong duty to motorman a and the sound defendant approaching a verdict and authorized when might though find and be the even the defendant violated the Bell Ordinance the motorman lieve that injury. It in conflict with the is this failure caused duty defining plaintiff’s 2: defendant’s 4, instructions gong permitting to recover to sound if defendant’s gong sound the caused to Vigi contrary provisions injury. It to the of is also negligence of de Ordinance lant Watch omits giving only a It not excuses defendant fendant. approaching plaintiff, signal but limits when bring to its car under control and take of defendant steps injury only plaintiff is after in actual avoid the Independent danger. is of the ordi This not the law. humanity submitted on the nance and where a case is giving say jury to it is for the whether rule alone injury, preventing the of an alarm have aided in steps proper took or not the motorman whether 502 MISSOURI, SUPREME COURT OF bring proper tbe car under control when in exercise danger. plaintiff going saw, care he or could have into seen danger wait until The motorman entitled to was not Railway, imminent. Holzmer v. 408; Mo. Ellis Railway, v. 680; Railroad, Mo. Dutcher v. Mo. Cytron Kinlen v. Railroad, 162; 216 Mo. 165; Transit Railway, Mo. Mo. Co., 719; Deschner v. 331; 182 Mo. Railroad, Kinzeman v. Douglas A. L.
Robert Brown Richard re- spondent.
(1) requiring sounding gong; ordinance a upon a car under certain circumstances, does not require аpproach' gong that the shall be so sounded on the person carriage railway or toward the track. requires gong quick It to be sounded succession only approaching carriage when street car is some person. necessarily means that the This shall only carriage be sounded succession person railway position peril. is on track or in It rule the well-settled that the motorman is a street any person approaching has assume pass will the track and not over the same immediate- only ly of an front is when a person position danger, vehicle or is in or when the carriage person motorman can see such will be danger position required give that he a warn- ing speed Boyd or to slacken the of his car. *4 Draper Rys. Ry. App. v. 105 Co., 371; Mo. Co., v. 199 Mo. App. Flack v. 162 490; Railroad, Mo. 650; Frank v. App. 112 Co., Mo. Dutcher 496; Transit v. 241 Railroad, (2) Mo. v. 200 165; Railroad, Deschner Mo. 331. If plaintiff guilty going upon of defend- railway under the ant’s track circumstances disclosed by evidence, then under the well-settled law of State, the defendant owed him no other than to ordinary stop prevent exercise care to its car and to in- Ry. juring App. him. Grout v. Electric 125 Mo. Co., 210 560-562; Holland v. Mo. Railroad, 351; Moore v. 1920. Ry. (3) Mo. 545. one Lindell When testifies Co., approaching looked for an car and none, saw had when the facts show that he>looked must have say that he fact that his seen, see, Courts and nothing. contrary to will him statement avail Peter- Murray Rys. son Mo. Co., 75; v. v. Railroad, Mo. Mockowikv. Mo. 183; Railroad, 550; Underwood West, 187 W. S. injuries personal arising C. Suit
SMALL, from City collision with streеt car of St. defendant’s Joseph. petition January alleged: 30, 1918, That
plaintiff wagon driving and across defend- railway ant’s tracks Street between 16th oppor- and tunity Streets. That before 17th an entirely cross said without and tracks, plaintiff, warning signal, or notice to defendant’s unlawfully negligently ran of servants defend- one wagon against ant’s street cars which great whereby plain- riding, with force violence, injured. greatly tiff was thrown charge of said defendant’s servants either That or and his on the tracks him vehicle proper of of or the exercise care defendant, tracks could stop him time said vehicle in seen wagon. striking That said servants the car keep vigilant carelessly defendant, failed to watch moving persons, tracks either on the for vehicles carelessly sаid car failed toward them, possible appear- space on the time shortest carelessly failed to sound ance approach any warning give injured. By reason of all car. of said of the were in violation acts all of said defendant That Joseph, city Missouri,' ordinances land, judg- law the Plaintiff asked violation $10,000, ment for *5 OF COURT MISSOURI, SUPREME Joseph. Railway ownership
The admitted answer of the street ear which with the collided denied all al- other legations petition, pleaded contributory neg- and ligence. employed by testified: That
The he was’ Kept wagon sons. his his horse and at home between 16th and 17th Streets. That about one on the o’clock, day injured, go he he hitched his horse to to the along shop, alley and north started back of alley up grade his house. The was a little Lafayеtte Street, north to had double street- car tracks on it. The street cars turned onto La- fayette coming half a north, block Street, from where alley Lafayette intersected Street. Plaintiff drove directly got alley, north, when out and he so he building being could there see, southwest corner alley Lafayette and Street, he looked on the said right along no no car and heard bell. He and drove saw regular gait, any danger. at the or dream of see “fairly every old, horse was at m himself The re- spect.” years. He had the horse driven about ten The first he knew the street car was when all over wagon. somebody thought him sat in the He he go shop. got got on to he was able When there wagon, ground fell he to the out of in- his suffering pain juries, and was his shoulder, neck peоple street car came after head. him The they gave down the doctor’s where office, took him treatment for -three weeks. him about He medical hip side and otherwise. hurt and the On cross- kept he said: barn where examination, he alley got bordered on nothing Lafayette Street, looked and from either way, nothing all, on the and heard street at no noise. pass there. He the car were He knew tracks big corner of barn on southwest Street west. At look the horse’s time, Lafayette passed middle of head would be Street, the curb middle between From street. y. *6 Co. the barn the south track was about feet. The length .entire out in the street the horse before he could west, look west. until he Looked hut not could way through; see all he the when looked hе saw clear away. down to 16th Street, which was a block one-half The car on that went east north 16th came and then Lafayette turned east on cars Street. Guessed cannot go they fast slow corners; around down When then. Lafayette he looked on west and saw no car he Street, straight went the tracks. Did not look west after across wagon, that. Did not know the car struck his until wagon. sitting he after came to nor Did not see his hearing hear the street car His before struck. it pretty middling, good, “fair to or a better.” His little very sight good. wagons Nothing No on the street. prevent seeing 16th horse his Street. walk- down to His tolerably ed fast across the street. Witness was here paper, sign. The said he did not shown a he exactly signature him look his; shown did not like anything.” it “I didn’t know he wrote was when it, writing stating all. Witness It was not at denied his Lafayette anyone he Street heard drove into he stating turning 16th Also Street. denied a car at when his was on tracks, the horse time cross and that hurry the and .he horse across started the track, get footing slipped his car collid- before he could pavement; wagon, plaintiff to the and threw ed with the stating, was on when the tracks, or, Lafayette just turning He saw Street. east car was not see the accident. after street car there .Did years old. The He was conductor. motorman or January, happened accident plaintiff: Augusta That Mrs. testified Emke, ' Lafayette was on She Streets. 18th and
she lived at sitting plaintiff. in the front. She which struck hump car went looked, heard a She saw the man she hind wheels into got went the car and out of She fall out thе street. happened immediately. 16th between The collision home MISSOURI, SUPREME COURT OP Joseph Railway place alley near 17th, where the would cross the street. The man thrown air. heard She gong ringing no bell nor the collision. Did not any know notice whether the car slackened after it wagon. turned into The car was it hit the Street, before
past stopped; when it even with telephone post right side street. hand On the witness said: The car was cross-examination, sitting.on east. Witness was hand side of car, the south not know whether side. Did slowed down. Did not hear but had heard bell, ringing they at 15th and were there 16th Streets, *7 on Penn Street. She did not listen for a but did bell, any just not hear accident. hit hind the Car the wagon. wheels of the Did not know the man. Conductor get did not her ran name, she off. there Besides herself, happened January, was one man on the car. Accident the year before the tri .1. plaintiff: McNeely,
W. A. for testified He awas passenger on the ear. on the north at the Sat side rear. Did not see but heard and felt shock. It collision, Lafayette was where the intersects Street be- wagon tween 16th and 17th Streets. horse and were on the north side of south after the track collision; practically say track. Could north not whether the sounded before the but he collision, presumed it. never heard He he could have it, heard sounded. The car had it been was feet east of alley, Lafayette stopped. when Eastward Street quite sharp grade was from 16th Street; down decline for block. On witness said:- cross-examination, speed. pay not notice the rate оf Did Did not attention ringing to ascertain whether bell was not on the car; would say ring; say, it did not all that he would was, rung, might hear it. If bell he he did not had not plain- heard it was After it; an even chance. accident, doing, tiff seem to he was but know what drove off.
C. C. for testified: He was about Madison, away, happened. one-half block when accident Had y. Joseph Railway Hale plaintiff years. thing known for six or seven he First wagon, knew when he heard the he car hit Lafayette at corner of 16th northwest Streets. long. The whole block is abont feet Street 40 or 50 wide; about feet never measured. He went place lying to the Mr. of accident and found on the ground on the track. north car Rear end alley. 10 or 12 feet east Prior to col- of east line of ring. no cross-examination, witness heard bell On lision, ringing, paid witness Did not know bell said: about no Had come from the south 16th Street, attention. Lafay- got to the northwest corner of 16th he prior paid ette he collision, that, heard ringing no would not not; attention whether bell was say ringing. bell was not plaintiff:
Dr. Hansen He had testified plaintiff’s family plaintiff’s physician. at resi- He was Teigh, representative, came dence when Mr. defendant’s Teigh plaintiff’s day talk- house the of the accident. strapping plaintiff’s plaintiff as doctor was ed to Teigh like to have state- back. told give. undertook ment which accident, Teigh, said to He remembered gotten slipped he would have on the track, signed written, across. After statement *8 perfectly time. The witness the he was conscious it; at. dressing plaintiff, bandaging the claim- when writing agent Plаintiff was suf- out the statement. surgeon regular fering time. at that Witness was years. Railway Company, for had been Street did not Teigh brought taxi. Witness whipped horse. Re- his said he recollect hearing Teigh, heard no that he tell membered ring. bell and 1078 Sections read in evidence
Plaintiff City of of 1905 Ordinances the Revised Joseph, follows: were as or driv- conductor . . . Fifth.
“Sec. vigilant keep all vehicles watch shall car er of each OF SUPREME COURT MISSOURI, Joseph Railway persons especially on foot, children, either on the moving appearance track or on towards first it, persons stop- to snch or vehicles, the car shall be ped possible. space shortest time and gong
“See. 1078. Cars to be fitted with be—to Every penalty. corporation person sounded, or when— any owning operating railway city, or street this run- ning propelled by electricty power, or other shall cars, every operated by cause car or vehicle or owned them to gong. per- be fitted with a It shall be of such corporation gong son or to cause the car or such ap- rung vehicle struck be succession any proaching carriage person, approach- team, ing any crossing city. Any within the mo- driver,, person, having charge torman or other car such failing provided, to strike vehicle, and such herein shall fined for each offense not than be less five dollars fifty Chap. [R. nor more than 1897, dollars. O. 62, Art. ”10.] Sec. 1, On behalf the motorman defendant, testified: day “Q. I believe on the accident going had come from 16th Street and was north on 'La- fayette? Going A. east. you I east —I
“Q. mean wish would tell the was, where case or his horse, guess, I it? A. I back feet, about alley. from the alley? alley A. from
“Q. West West coming going I out of east. noticed horse my began ringing course, and I bell. Of the horse supposed stop. going I I slow and were began gotten probably, 8 or him and feet, about lunged slapping his lines and the horse horse with his stop. everything I me out but it was too late done judge I I was about 12 it was too late. I could then but and I hit feet from vehicle, wagon. something I hit the like distance after run whipping saw this man “Q. When do then what manner have described in the *9 Hale anything? your I kicked the bell A. bell—if
about quickest my working it the rapidly began car to way. particular you far pay how attention Did
“Q. anything? wagon, you your notice ran after struck car very was in particular because I far, A. Not hurry if hurt get he wаs Mr. to see assist Hale out to immediately. got himto bad and your speed run-
“Q. About what rate Lafayette you proceeded A. Street? ning east Ordinary speed miles an hour nine or ten about rate of out there. speed ordinary say is rate of
“Q. You judge about that was there? A. I hour out miles an going. speed is located . . . What “Q. I was alley, Lafayette and the Street corner southwest anything? there. A. or barn Shed ‘‘ coming any one have on effect does that Q. What get they alley you out them until see out —can or shed you get after past A. Not there? that barn get they you out in them until see barn can’t behind the the street. you was on the man woman Did know who
“Q. your A. sir. No, car? jury or not whether tell the
“Q. I wish your gong you rang came out the man first when when into the looked Mr. Hale at alley or not whether the car. towards A. looked He direction? just when what did tell the ££Q. Would whip whipped up did he got closer—he his horse —what lines. A. Just the with? u^ horse what struck when he ££Q. And lunge try the track. across A. Started horse do? £i Boyer. by Mr. Cross-examination going was the horse How fast ££Q. walk. A. a moderate Well, it? grade towards the tracks
££Q. incline. some up A. I there is believe it not?. hill, is drawing Mr. The horse was ££Q. Yes, A. sir. hill into Street? *10 MISSOURI, SUPREME COURT OF Joseph. v. Co. Hale St. alley coming Í A.
‘£Q. You the'horse out of the saw just I he as came out from Yes, noticed the horse’s head shed; you Mr. ££Q. Is that behind saw coming alley? up Yes, Hale A. sir. you
<£Q. A. Yes, The first had seen him? sir. speed change any ££Q. horse’s from that Did the until the track? A. No time the time was near just Continued until ££Q. same very Yes, he was the track? A. until he near or5 6 feet. you was the Hale
££Q. Where saw Mr. whip him A. head with the lines? His was about 5 feet of rail. the south Very it?
££Q. rail, close to the A. Five yes. six feet, your
££Q. car from him at Where that time? guess A. About 50 I back, feet either, about —not there; along 10 or 12 feet, or 15 time about speed ££Q, Now the at which the horse was you coming from the time first saw head out of the got very until he onto track or near the track changed slowly never to walk continued all that —he way A. distance, did he? it seemed to me, Mr. Hale looked around and he noticed that the car was coming began slap the horse the horse’s head then was five six feet south of the south rail. ££ you say only Q. And at that time were within ten feet of him? A. ten or fifteen feet. Yes, alley,
££Q. As were I under coming alley? stand, head the horse’s out of the A. Yes. your
££Q. You continued run car down A. Street? sir. Yes, kept coming
££Q. the horse And aat slow walk towards the track until it was within about five feet track? A. Yes. running
££Q. And car was still as it had been speed any? before—had slackened the A. No, sir, just along. coasting I was Joseph. Railway you put no. Well, Had brake on? A. Q. £‘ running slightly grade? A. down You
“Q. were Yes. you were on the car kind of brake was
“Q. What driving. A. Air brake. working? A. Yes.
“Q. Was air you? applied stopped it and You “Q. A. Yes. During the colli After collision? A.
£<Q. *11 sion. you stop until after As a matter of didn’t
££Q. fact you? A. did No. collision, you then ran Your ££Q. car struck time. A. distance? Didn’t some begin stop your try you car? to to ££Q. When did try going A. to to run across seen man was When I me. track ahead of you ten feet of this were ££Q. That is when within stop your try you began A. car? to to then whip as I horse. Then to As soon is when he started stop. going whip not to seen he was him start I saw you get were within ££Q. Let’s this correct—when you began then horse, Mr. ten feet of Hale’s try right? A. the car—is time to Ten or fifteen feet. you put A. I sure. then, Did the air on?
££Q. put you it on? A. Yes. And that first time ££Q. is your you usually run car around How ££Q. fast did Lafayette and down east 16th into Street speed running your down there? usual Street —what per speed guess hour. or miles A. The usual I was 9 go you . . . curve. slow around the Of course you ago, it a Isn’t as stated while ££Q. fact, it a you your you ring within bell until were didn’t rapid rang I it ? A. ten of Mr That is when feet ly- Began stamp it feet—ten
<£Q. feet you A. it I far me, as are from is not? about as judge nine or ten feet. MISSOURI, OP SUPREME COURT
Hale v. rang you “Q. And that is the first time this bell quick going succession? A. I seen was When stop. looking He car. at the ‘‘ you ring quick Q. Did it succession until with- rang quick in ten Mr. A. I feet of Hale’s horse? it in attempt succession when I make seen he was to cross ahead of me. you
“Q. That were within ten feet of is, him? A. Ten or fifteen feet. rang you
“Q. And that is the first time the bell yes, it? A. succession, Well, first time I remember. going? A.
“Q. How fast When it wagon? collided' with the
“Q. Just a little collision and as approaching him were him, you running? say, A. fast As how were I about nine or ten miles. Why you ring
“Q. didn’t the bell on this car when coming out of first saw the horse towards ring car track? A.- I did but I didn’t rapidly. . . .
“Q. You think were 50 feet west of the west *12 alley you coming line of the first saw the horse alley? out of A. Yes. alley
“Q. far it 16th How Street to the alley happened? where the A. Half collision a block. I don’t know the distance of block there. length ordinary
“Q. it Is the usual a block? A. ordinary It is an block.
“Q. About 120 140? A. I feet, or don’t know length what block 300 feet is; about for the block and' 150 feet for a half block. you say alley
“Q. How wide would is? A. alley guess, The is about 19 I wide, feet or 20. your
“Q. Who conductor? A. Schaeffer. your working day? “Q. Was air well that A. working good. Yes, sir, As a matter
“Q. wasn’t fact, there some de- fect? A: defect. No, ' Joseph.
Hale v. you yonr A. I “Q. sand car! did. Did have stop yon in the endeavor Did nse “Q. sand yonr . . car! A. air and sand. . Yes, you Let ns not it—when
“Q. be mistaken about you say the horse were 10 or 15 lunged from the horse feet try immediately began forward then space stop your shortest car and did possible A. sir. Yes, that correct! —is your car did run before “Q. Now far how stopped! distance; don’t know A. I measure the didn’t exactly, very far. not Might A. have
Q. idea. been Give the an might very far. but it was feet, 25, alley, you! A. didn’t Not ran “Q. You very any. much, if valley beyond rear of much
“Q. How your stopped! go A. I don’4 think car alley. beyond of the car went the rear your car don’t think the rear of crossed You “Q. alley! A. No. pos- you positive Very A. that! about “Q. Are yes, . . . itive, sir. your say that half of car about
“Q. So alley passed esti- of the over the east line —is yes, Something like sir.” that, A. mate! The testified defendant: The conductor gong. rapid of the Plaintiff noticed sound in the street then, of the had come out whipping car track. He feet from the five his horse. seven along all after been sounded bell fall, man the old Street. Saw turn into wagon. cross-exam- hit the On not see the but could day. mo- clear When the It awas witness said: ination, quick succession, Hale was torman sounded the car was with- track, and the feet within 6 10 or 15 feet of him. *13 claim-agent Teigh, testified: defendant, Mr. given himto the accident That of he wrote a statement plaintiff to the was read over the which 287 Mo.—33 OF MISSOUBI, COUBT SUPBEME being written, and to him as
as well as read was record). copied plaintiff signed (statement in the not plaintiff’s of witness the evidence, that In rebuttal, He a street had been follows: Fоrd, De was as question, years, the car motorman for eleven and that going, circumstances shown ten an hour under the miles length stopped the have been within evidence, should long. He 38 or 40 feet and the car was that company discharged, quit volunta- never bnt the rily. following gave the instructions for the
The court plaintiff: if that find
“3. The court instructs plain- that the in this believe from the evidence case and tiff January, day of 1918, the 30th was, or about wagon driving of street tracks a horse and across the City public company, in street in the defendant Joseph, prior collision Missouri, of and upon plaintiff or near mentioned evidence the defendant, and in car tracks of the said street place danger approaching if cars; from agents further believe servants de- company charge street car which fendant keep vigilant plaintiff’s wagon, failed to collided plaintiff vehicle in which he was rid- watch for and the appearance ing, agents or said failed vehicle, said and servants space possible, car in the shortest time and said street and as a wagon consequence car struck the thereof said plaintiff; injured if mentioned in evidence guilty further find that injury, which contributed to his own then verdict against defendant. must be “4. further You are instructed that find and prior evidence this case believe mentioned in evidence collision defendant’s street car was which he approaching, agents riding, and while so charge company then said defendant servants *14 Co. Hale v. St. ring quick negligently failed or in to strike
street car upon gong said street and as a result succession a ring gong quick in such failure to said succession the of plaintiff riding wagon in was and struck car plaintiff injured you plaintiff, if that and find your negligent, instructions, in other as defined then against plaintiff the defend- verdict must be for company. ant
“5. If find believe from evidence this in charge of ir the street that defendant’s motorman case in collision of the mentioned car at time evidence . by ordinary exercise of either saw care seen him either on or could have street position danger passing in a of cars, car track and stopped by car in time to have nary exercise of ordi- at his care the means command plaintiff riding, striking the in which if negligently said motorman failed believe that stop having plaintiff perilous car after seen said ordinary positiоn the exercise care could have plaintiff position danger, consequence in a seen negligence plaintiff injured, plaintiff then of said though case, entitled to a verdict even plaintiff may that believe not exercise care for safety, driving or near said his own car prudent ordinary person an ex- track, ercised under the same circumstances.” defendant, court behalf of instructed the
On as follows: you that the defendant rail-
“1. The court instructs way company way over its tracks and had the stop no whatever its car owed charge agents speed until its thereof to slacken its ordinary care could have seen or in the exercise saw, upon its tracks ahead to drive intended danger, position of put car himself as soon motor- evidence that from the its believе ordinary care could have exercise or in the saw, man tracks ahead drive seen that SUPREME COURT OF MISSOURI, Joseph. Railway position or be in a he sounded the the car in succession and exercise ordi- nary care to space shortest time and safety possible passengers consistent with the on his machinery of the car, then under no circumstances can have a verdict in finding this case, and *15 must be in favor of defendant. jury “2. The court instructs the that the mere fact plaintiff that defendant’s motorman saw obligate stop its car tracks did not the motorman to speed. slacken his car right to its Such motorman had the plaintiff presume negligently to that would not upon by drive the tracks where he would be struck the' stop going upon and that he car the tracks. right The had to motorman so think act until he ordinary saw inor the exercise of care could have seen plaintiff upon that of tracks ahead position you danger, in a or would be if be from the evidence such motorman lieve then exer ordinary stop care to his in cised the shortest time space possible safety pass with the consistent his machinery engers you of the car, and the then must find your verdict for the defendant.
“3. You are instructed that had no rely any upon obligation solely must agents prevent its rested the defendant or in- juring ordinary and that was to exercise him, safety, for his own caie to look out believe guilty from evidence diving upon in front in defendant’s tracks of defendant’s car in the manner described and that after evidence, placed position danger, a himself ordinary through agents its exercised care to defendant prevent injuring plaintiff, car and then he is your to a sum and entitled verdict verdict favor of the defendant. must be in agents of “4. court instructs that the The operating the car evidence were defendant only required described management care in the such
to exercise Vol. Joseph. St. operation of the car as would have been exercised reasonably prudent person like under or similar and if the evidence
circumstances, believe agents charge defendant’s its were in the exer- cars ordinary cise of care such at the of the accident time com- plained by reasonably of as would have been exercised prudent person under circumstances, similar then likе must find verdict favor the defendant.” a verdict found defendant, appealed to court. go jury,
I. We think there was evidence to the under both the humanitarian doctrine and ordinances of City by plaintiff, introduced in evidence recl"u-i;t:'ing- keep vigilant motorman Ordinances. persons moving watch for the track, towards ap sound his when was succession, persons. proaching carriages and The motorman teams, going nine or miles an hour and did testified, was ten *16 quick gong speed, in nor sound his suc not slacken his plaintiff’s eight or ten feet of where until within cession or six and horse was five horse crossed said track, the All evidence the car shows, the track. the south of feet wagon. the horse Therefore, of the the hind wheel hit moving wagon 20 or 25 the car was moved while feet, according eight collision, feet the ten last the might in be this evidence. From motorman’s it the he when be said was in the motorman ferred, error, that quick gong succes applied his sounded the air and yet feet five or six south while the horse was sion, likely as traveled twice the horse it track, as is not the fast as the time no the horse at that Plaintiff testified, car. exceeding speed so, If a fast walk. at a per reasonably argued and, might the horse that be actually the track before on the haps, the gong speed his or sounded slackened his motorman testified, lie quick Furthermore, succession. the gong, nothing crossed car or heard the also danger. wholly witnesses His oblivious that, all. they gong at So sounded no heard testified, SUPREME COURT OF MISSOURI, y. Joseph. question there for event, as to whether gong the motorman sounded his suc- kept viligant cession, watchout stopped space possible his the shortest time and appearance danger, required by after the first as said ordinances and humanitarian doctrine. says,
II.
But defendant
that
that
testified,
passed
he looked west after he
not see
barn
being
no
and there
obstruction,
car,
plaintiff’s testimony
point
contrary
on that
Vigilance.
eyesight
physical
because his
be
facts,
ing good,
had
looked. Therefore,
he must have
he
seen,
charged
seeing the
a matter of
car,
he must be
to sound
he saw
the failure
car,
then
law,
Railways
citing
gong
v.
Peterson
immaterial,
Murray
Co.,
183;
176 Mo.
75;
l. c.
Transit
Co., 270 Mo.
In each these he court the car and the held, therefore, he saw approach notice further оf its sound- needed ing no safety nothing added' to his plain- knowledge danger. But case, says although says, he car, see he tiff he did agree in which we under circumstances with de- looked, that he must have seen looked. fendant presumes this, But it does not follow from that the law wilfully looked and saw certain ran into danger, than rather that he all failed to look at or looked carelessly looking inefficiently so as to to not amount precise point at all. cannot involved—-we find—has adjudication, laying ever down the *17 proposition that to look see, "when to no is it is of plaintiff say avail for to he looked did not see,” plaintiff testifies, he did look, but failed this to see, thoroughly in court one first and most considered Kelsay v. cases, Railroad, c. 374, Mo. l. said: "One plaintiff two facts true: is Either the did not look prudence required that care common or she her, ’ ’ not all, look until too at late to collision. avoid y. to Hayden 573—“where Railroad, v. Mo. inSo, failed deceased assumed look was to see”—the court into ran that to rather than he looked look, p. 573: heedlessly. wilfully said, court danger The impossibility physical was a seen that “It will thus it he approaching have failed see the deceased . . Had . direction. if he had looked train, in.that question could and that he no done there can be so, passed and stopped train until the team have L. safety.” E. Union Hill So in crossed over in then Kelsay Case, c. 103, & P. 260 Mo. Co., l. where opinion supra, dissenting Mo. cited in the is Graves, ‘‘ plaintiff is said: Had J., J., concurs, Paris, up pole, not proceeded case would this looked as he pole went ... be here. As touching step the trouble it, at each looked been averted.” would have probable presumptions, it is most
Of two plaintiffs testifying such cases so that reasonable, carelessly they did not all, or looked so failed to look at danger they rather than that and saw the looked see, plunged that the rule, negligence it. must forward So wo that, into may guilty fact, looking looking driving care- track without on the fully approaching does relieve defendant for the ordinances sound its under said from its keep vigilant succession, watch persons appearance on the on the first pro- the track ordinances said vided. plaintiff may guilty have been fact
III. The contributory does track, jury, becаuse the human the case not take may based idea itarian doctrine contributory negligence guilty such and still be introduced can recover. ordinances oper- duty in simply evidence, defendant’s relate *18 OF MISSOURI, SUPREME COURT Railway Joseph Hale v. St. Co.
ating apply its cars, to cases where the plaintiff invokes doctrine as the humanitarian Contributory Negligence. ordinary negligence where well as of cases applicable not is doctrine at all. involved prescribe IY. That said ordinances are valid and operating said motorman in per part, ^at ^ was se on his Validity. by decisions them, violated settled well [Sluder Transit Mo. 107; court. v. Mc Co., Hugh v. Transit 96; Transit 190 Mo. Hovarka Co., v. Cytron 716-19.] 191 Mo. Co., 441; Co., Transit 205 Mo. (a)- given V. Instruction for defendant was No. required only erroneous, because the motorman to quick gong in so'm<^ succession in case the Instructions. by motorman ex could seen have ordinary going “the ercise care to drive position put onto the ahead of the track car or be in a danger.” together, Whereas, said ordinances construed required gong quick the motorman to sound his suc by vigi cession, when he discovered or exercise lant approach watchout ahead could discover that he was ing persons, moving teams or vehicles who towards, were might go upon, get who track actual into danger, doing, warn so as to them from so can sounding gong not wait before so such succession they going actually until are to drive the tracks or position danger. are in an actual Said instruction jury. have should so informed (b) given Instructiоn No. 2 for defendant erro- was requiring entirely ignored neous because it said ordinance be sounded the motorman and stated that right presume motorman had would stop going just before tracks. As we seen, have affirmative, required said ordinances part action on the give persons timely warning motorman to moving approach, towards the they tracks so that would on the track. He had no stop. they presume so to remain inactive given. Said instruction should *19 ignored given (c) defendant No. 3, Instruction for require city and did both said ordinances plain- injuring prevent anything defendant to do position placed himself in a until tiff danger. of absolute defendant, given
(d) also 4,No. for Instruction wholly ignored instructions Said both of ordinances. said therefore, given were, defendant, 2, 4, 1, Nos. and [Cytrоn 716-719; 205 Mo. Co., Transit v. erroneous. seq.] 441, l. c. et Co., Mo. Hovarka v. Transit plaintiff’s instructions The fact that Nos. and VI. for.plaintiff, recovery if said ordinances authorized of the instruc violated, not cure vice were does Cure. given defendant, because tions aforesaid a verdict de for the directed each of instructions said They were reference to said ordinances. without fendant simply contradictory the effect neutralized given for the based said said instructions wiped sponge.” “They out, them with a as ordinances. 716-19.] [Cytron 205 Mo. Co., Transit judgment is aforesaid, For the errors reversed for another trial in remanded accordance cause opinion. as in our Broivn and the law indicated Ragland, concur. CG., foregoing opinion by
PER Small, CURIAM: The opinion adopted court. All C., judges concur.