*1 op [April Term, Missouri, Vol. 317. 524 CoüRt City Fleming Kansas of al., Receivers Hogan et A. Fred W. John 404.W. Appellants. S. Railways Company, One, 1927. June Division tending establish Conflicting. Evidence EVIDENCE: Custom: 1. existence cars custom of and notorious general, uniform patrol automobile meeting a the cars their motormen yet conflicting, direction, although sharply opposite approaching if question existence carry substantial, to the is sufficient to clearly-pleaded custom. of stop street Negligence. a custom Inasmuch as PLEADING: Custom: 2. substantive patrol is not automobile aof cars on the character, necessary negligence, evidenciary only it is of defendant’s but pleaded. that such custom be Question. Ordinarily ques- Jury Proximate Cause: NEGLIGENCE: 3. determina- the consideration proximate the of .fact for of cause is one tion legal knowledge, but question jury. or of It a of science is not tion of is to be attending fact circumstances of a fact in view the determined as injury. injury Intervening was the The cause of the -: Cause. 4.-: set in motion the chain of proximate cause which cause if it was the efficient injury, leading up and continuous which in natural to the circumstances injury. by any independent cause, produced the sequence, unbroken new Superseding Intervening Acts: Pedes- -: Cause: Concurrent matter law that ruled as a trian: Automobile: Street Car. the act cannot be loading suddenly platform stepping pedestrian west a off of the railway eastwardly proceeding which a tracks on and patrol across the street running southward, au- which the driver of the automobile swerve, easterly a street car- strike northbound tomobile was caused to tracks, whereby riding plaintiff policeman ón the east injured, intervening injury, or such an was the cause running negligence superseded primary the motorman in cause passway loading platforms, the two his street car into the narrow customary gave police patrol the use if the ordinances and way tends to duty and the evidence and made it the the motorman his reasonably ap- attentive to the that had the motorman been show proach have approach in time to he could have its discovered stopped position tracks the street car reached a on east before it opposite loading platform. pedestrian At most the west act wholly only injury, concurring policeman’s and not a cause of independent between it superseding completely cause which broke the connection alleged negligent act of the motorman. Railway: Anticipation. pedes- 6. -: Pedestrian Street The act of a on suddenly stepping platform upon trian in from the west the west railway approaching street on the west tracks in front of city, tracks, large public district of a usually street in the business persons use at a time when and west foreseen and east tracks. considerable number reasonably loading platform, happening is not such a as cannot be anticipated moving the motorman of a street car Anticipated Injury: -:7. Proximate Cause. It is not essential that curred, anticipated or that he could have exact manner in did which very injury motorman of street ear could have foreseen the which oc- oecur; injury reasonably it is sufficient if the foreseen could have 1927] negligence was the happenings, and a number one of
from proximate cause requires Emergency Call. An instruction INSTRUCTION: 8. jury “emergency responding call” is not to an find that policeman that a call had was a is that he where evidenсe erroneous *2 police headquarters, he driver and that sent into been designated patrol proceed a with the patrol had ordered to automobile customary superior call, their was not for point that it in answer to precise explain of the call. nature to them officers Ordinary Actually Hearing Approach'of Patrol: Siren: -: Police 9. jury requiring to find that siren of Hear. An instruction Care to intermittently approached police patrol was sounded as it the point nary automobile collision, motorman “saw or ordi- and that the exercise of known, by seen, knew, or could the exercise care could have ordinary care, approach stopped of said automobile in time to have of said collision,” correctly hypothesizes law, is street before the require jury because it does to find not erroneous not that the motorman actually heard the siren. Approach Stop -: of Police Patrol: Full 10. Refused of Street Car: Ordinance: City Instruction. The ordinances Kansas do not street include required among stop approach cars as the vehicles which are on the a airtomobile to remain a standstill until such therefore, patrol the collision he bases one passed; policeman, injured has in an action of a awith street and in which ground right upon of his recover motorman’s failure obey alleges required an he ordinance which a street car to come to a full stop upon asked approach police patrol, of a the refusal of an instruction .by telling jury defendant that “the ordinance read evi- require stop meeting dence does not a motorman to his car when same is patrol” error. And peculiarly the refusal of such an is instruction is plaintiff hurtful where man’s. failure their cars ure to custom is bases his to recover on both the motor- alleged stop observe an universal custom of motormen to approach police patrol, of a and on the motorman’s fail- obey ordinance, and the evidence as to the existence sharply conflicting, given jury instruction submits to the question negligence violating the nance and the of the motorman in both the ordi- custom, and tells them to return their verdict for negligently neglected if find “that said motorman stop car.” Things: 11. ORDINANCE: Inclusion of Certain Exclusion of Others. An enumerating рarticular things upon ordinance operate which it is to excluding operation to be construed as things. from its all other An ordi- requires nance which “immediately the driver of a street car to his car keep stationary upon approach and construed to apparatus” fire cannot be require stop immediately a street car to police patrol. aof Duty 12. -: Construction: of Court: Instruction. The construction meaning city and error to question ordinance is a of law for court. give permitting instruction to determine whether an ordinance, meaning perfectly clear, whose requires is not car to come full approaches. when a Juris-Cyc. Corpus Appeal Error, References: 3015, p. 4 C. J.. Section p. 37; 3032, 1050, n. Section Usages, 85. J., n. 1033; Section Customs and 17 C. 80, 516, p. Municipal n. Corporations, 95. J., p. 903, 43 C. Section 569, 92; 904, p. 569, n. Negligence, Section 94. Cyc., p. 491, n. 29 45, 46; n. p. 639, Statutes, Cyc., 1122, n. p. 4. 36 Railroads, Cyc., p. n. 47. Street 36 1477, 8; p. 1611, 63; p. 1617, 99; p. n. 1639, n. n. n. 14. op
526 317. [April Term, Yol. Court Missouri, Appeal from Judge. Jackson Circuit P. Hall, Court.—Hon. ’Willard aníd Reversed remaNded. N.
Chas. Sadler and John B. Moberly appellants. (1) overruling The court erred in interposed demurrer at the plaintiff’s evidence, close of and renеwed at the close all the evi- (a) negligence dence. No under ordinance was shown. Ordinance 28759, 2, 5, 6, 9, (b) secs. properly 26. No custom was pleaded v. 126 Railroad, App. 53; Pankey shown. Percell Mo. Railway, v. 185, Railway App. 199; 180 Mo. Lindeman, 949; v. 143 Co. Fed. Railway, App. 637; v. Press 44 Stanard, Shields Mo. Mo. Co. Foundry 82; Co., 53; Guiney Bowman v. Car & Mo. v. Rail- (c) if Co., 167 Even prop- ordinance and custom Mo. disregarded, erly pleaded and same was cause of Co., 83; Rys. Borack v. Mosler 288 Mo. DeMoss Co., Safe *3 Wells, 566; 335; 270 W. Morris 246 W. Woods v. S. v. & S. Power 432; Light Co., Co., 258 W. Smith v. Ozark Water Mills 238 S. S. W. 470; 195 Daneschoeky Sieble, App. Harper v. Mo. Terminal 575; v. Cyc. (2) 575; giving 29 495. Mo. court erred in Co., 187 (a) by respondent, No evidence P-1 asked Instruction Railway Co., 572; 116 App. v. v. Rail- Sims Steel to base it. Mo. 110; Co., 274; v. 177 Mo. Oglesby Railway Jordan Co., 265 Mo. way (b) by pleadings. made 202 Mo. Broadens issues 418. Co., v. Transit 294; App. v. Coal & Railway Co., Co., Mo. Hall 142 Coke v. Moore 352; 212 Co., Mo. Rail- 351; Transit Roscoe v. v. Mo. Davidson 260 refusing give (3) The court erred In- 202 576. Co., Mo. v. City Odessa, Barton 109 Mo. appellants. D-2 asked struction Ry. Co., 595; 167 Mo. Evans v. Guiney Elec. 81; v. Southern App. 1 712; Peoples, v. 105 Fed. 453; Blashfield’s 60 Mo. Sadler Foreman, Ed.) 137. (2 Instructions Biochholz, Isaac B. Kimibrell and Mar- William
George Kelly, H. respondent. tin J. O’Donnell
'
that defendants’ motorman
case disclosed
evidence
(1) The
by appellants
оrdinance
construed
provisions
violated
railway
failing
give
operating the
predecessors
their
opera
cross streets
way between
right patrol failed
the motorman
negligently
car
said
tor of
sounding
negligently
siren
drove
heard the
have
could
heard
wagon
loading docks after
between
the street
negligence
that said acts of
docks and
space
entered
527
v.
1927]
proximate
were the
cause of the
injury
plaintiff.
collision and
Smith v.
302
Mederaeke,
538; Hogan
Mo.
Fleming,
875;
v.
265 S. W.
Shearman & Red.
Negligence,
32;
sec.
Buckner v. Horse & Mule
Co., 221
700;
Mo.
Kidd v. Ry.,
1079;
274 S. W.
Light
Harrison v.
Co.,
For time casualty some operation there used railway, in block Grand on Avenue between Tenth Streets, Eleventh two platforms, wooden or “loading docks,” so called, platform being adjacent one outside rail of the west car- platform track being adjacent and the other to the outside rail of the east safety platforms car-track. These served as zones, prospective passengers street-car stood while waiting to board cars, alighted which passengers leaving the cars. testimony The contradictory is as to their .exact loca size relative tions upon the street. Plaintiff’s witnesses testified that were 80 to 100 feet four length, width, three to feet in and ex eight pavement. tended six to some or ten inches above the street positively loading Some platforms of the witnesses testified directly opposite other, ivere each while located other witnesses equally testimony platform positive their that the east was located platform, some distance north west that the distance be right angle platform to the south end tiveen lines drawn of the east feet; 40 75 platform and to north end of the west from to platform east from 40 to words, other that the south end of the platform. end west Plaintiff’s wit 75 of the north feet north loading platforms of both as nearer Tenth nesses fixed the location platforms Street, half both in the nоrth placing Street Eleventh than ’ hand, witness, Bales, purport other defendants On the block. by him, made fixed the south testify actual measurements ing to some or 50- north of the platform as distant feet end of the west Street, and north end of the line of Eleventh property north property south of the line feet south as distant some platform east length the block on Grand Avenue between Tenth Street. shown is not the record. There Streets Eleventh Tenth and building undergo that a testimony on behalf some and a repair Avenue, on west side Grand ing construction street, thereby obstructing ve been laid temporary had walk clearly of the street. It is not west side hicular traffic temporary lay whether this walk north in the record definitely shown lay platform whether it platform, of the west testimony temporary walk curb, but there west vc permit traffic as to but one vehicular so obstructed south-bound Sup. 317 Mo. —34.
530 [April 31?. Term, Yol. Court oe MissouRI, bicle at a time pass loading- the west platform and the west curb. foregoing
The fairly is a- accurate description of quo, the locus in gather as we it from the record. casualty
The occurred on a day, during clear hour, the noon about 12:30 or 12:45 o police ’clock. The chauffeur testified that there were some 25 to 40 persons upon standing loading the west platform, and there was testimony that a pedestrians number of walking upon the sidewalks on both sides of Grand Avenue and that there awere number of traveling automobiles roadway. on both sides of the Both plaintiff police chauffeur that, testified entering Grand and proceeding Avenue south from Street, Seventh the automobile siren was blown intermittently, block; two or three times each police being automobile was along driven west, or south- bound, railway track, with the wheels of the automobile astride track; west that it customary was police patrol along to drive the right-hand car making track in responding call; a run and that, to a nearing the automobile was Tenth Street, a wh$n woman started Avenue, to'cross Grand and the automobile was slowed down almost standstill, to' a and the driver sounded siren twice before the stepped way; woman back out of its that the siren was sounded four Street; or that, five times south of Ninth when the at, automobile was closely approaching, or loading the north end of the west platform, a suddenly man stepped loading off north end of plаtform the west and took or steps east, ap- two three with his head down and parently danger, directly path oblivious of into the on- coming police patrol; man 10 was from to 20 feet distant stepped from the automobile platform; when he and that the automobile,- upon observing man, driver sounded the warning, approaching the siren as but the automobile was then so appeared impossible close to the man that it the automobile whereupon striking him, the driver of the avoid automobile sud- denly left, swerved or veered the automobile to the or east and im- mediately with the left front corner of defendants’ north- collided railway approaching bound street which was on the east track. that the distance between the two load- Plaintiff’s witnesses testified feet, ing 18 20 was a platforms and, when there street-car track, between the street-car and the west on the east the distance speed 12 feet. loading platform was 10 or automobile by plaintiff at just given and the chauffeur prior to the collision speed estimated its hour, 17 while other witnesses 12 to miles an street-car, just pi*ior to the collision, 50 miles an hour. The hour, and, five or six miles traveling speed at a ac- had been stop. witnesses, had about come to a De- cording to several making east, for the testified that he fendants’ motorman 1927} or Tenth Street, platform, and tliat automobile 15was
20 feet distant from the front end of the street ear when the automo- bile veered to left, east, to avoid striking pedestrian. Not- withstanding the effort made chauffeur to avoid strik- ing the pedestrian, the rear end of struck and in- jured him. The automobile was practically demolished the col- lision, and both and the chauffeur were through thrown windshiéld of the pavement and suffered injuries therefrom.
There is some evidence that, at time the reached the north end of the west platform, the street car nearing, *7 yet but had not reached, the south end of platform. the west De- fendants’ motorman testified that entirely he had passed the west loading platform by some or 30 feet, had reached the south end loading of the east platform. The motorman testified that he stopped could have the street car within a very distance; short that safety he had made a stop on the south side of Eleventh Street, and, receiving signal a policeman from the traffic at Eleventh Street tо proceed northwardly, he ran his northwardly car speed eight at a began or ten miles an hour he until slow down for the east platform, when he observed the automobile veer or swerve to- car, applied emergency ward his and he the air “stopped brakes and right then.” The motorman furthermore testified he did not any collision, hear the siren at time before the testimony passengers he corroborated several the street who did not witnesses, pedestrians testified hear siren. Other street, having testified heard the siren before and after policeman automobile reached Tenth Street. The traffic that, signaled pro- after he Eleventh Street testified the street car to northwardly Street, had crossed Eleventh he heard ceed approaching automobile and located the siren of the Streets, whereupon police- Ninth and Tenth he sounded his stop the traffic across Grand Avenue. to check or man’s whistle at, City prior to, Kansas effect time An ordinance of by plaintiff, applicable pro- put evidence casualty, was as follows: which are visions of Police, patrol, United mail department, fire fire States “Section right any street. shall have the and ambulances
vehicles any apparatus, police patrol or approach of fire upon the “That up practicable as near as to the draw every vehicle shall ambulance, appara- standstill until such remain at a right curb of passed. shall ambulance patrol or tus, ‘‘ immediately stop keep his car car shall driver of any apparatus. fire approach stationary upon it SupReme op [April Term,, Yol. 317. Court Missouri, “Section 6. right Street cars shall have the of way, between cross streets, except over ali other vehicles, provided as. . in Section 5. . .
“Section 9. Vehicles shall driven in a with careful manner and regard due safety for the pedestrians all convenience other vehicles.
“Every city person using any vehicle on street in the of Kan- City, sas shall operate, portion drive or ride such on the vehicle right of street, except the center of where side of ’’ street is impassable. such condition as to be
Section 2 ordinance the word as includ- defines “vehicle” ing “equestrians, horses, everything runners, on or wheels, led except carriages,” baby street cars and 23 of and Section the or- prescribes warning dinance signals the liifad of to be used devises vehicles, vehicles, prohibits on and in all effect of sirens use on except “public ambulances, belonging to fire and police vehicles departments city required respond alarms of or vehicles emergency fire and calls.” other tending existence,
Plaintiff at and offered evidence show usage general casualty, prior to the time of the custom on the part City stop-such operatives street cars Kansas cars upon hearing police, public a siren of other sound of fire contrary, tending offered evidence Defendants, vehicle. generad time, custom existed at such but that show -no such customary then, long been, time for the motormah and for had approaching patrol is from the his car when the proceed with *8 moving. Defendants’ street ear is in which the opposite direction cross-examination, however, as follows: motorman, testified Yes, you you sir, sirens? A. for “Q. stop when hear the Well, do Q. you Aren’t so instructed and ambulances. departments fire stop you your hear siren whistles —aren’t those your work to when right? am, I if company? Isn’t that A. from the instructions in, part your you ivere broken as Q. When street blocks. you siren, heard the to instructed, whenever you not duties, were printed a Q. you haven’t book of rules And your A. Yes. stop car? says you Q. itAnd whenever hear the Yes, sir. A. effect? to that you? Yes, custom, you follow that don’t A. stop your and siren, City, you Kansas the whole time lines of Q. did all And sir. you had known that this machine Q. ifAnd Yes, sir. A. Avorked? blowing siren, you im- Avouldhave been if it had coming, was Yes, ? Avenue A. sir.” Grand like place at mediately stopped a police patrol they testified that driver of and the plaintiff Both railway street car the east north-bound approaching saw crossing, just crossed, or had police patrol when the track thought (re- they “expected” or intersection, but that Tenth Street 1927\ IÍOGAN V. FLEMING.
lying upon the alleged aforesaid custom, they which both testified they had knowledge) that the motorman would street ear. Inasmuch as reference will be made opinion in the of our course to- specific acts of negligence pleaded joined by and the issues pleadings, it is appropriate that we plead- state the substance of the ings. The petition, substance, charges appointment of defend- аnts as receivers of railway corporation and that said receivers operating were railway plain- on Grand Avenue at the time of injury; part tiff’s maintained, that there were a railway, as of said board sidewalks on Avenue, Grand between and Eleventh Tenth (cid:127) Streets, streets; on both the west and east sides of said that there was in time, long force effect at said prior thereto, a certain City (heretofore to) petition ordinance of Kansas referred and the sets out in ordinance; haec i'erba the applicable of said that sections by the board sidewalks maintained the defendant receivers were so together near that a north-bound ear on track of said the east railway, passageway passing sidewalks, between said so narrowed automobile, rapidly that a police patrol, going south-bound or could safely proceed sidewalks, all between said southward by ordinary knew, defendant receivers well exercise of care might long it known; prac- “that has the custom upon by operators for plaintiff time herein relied tice railway approach- cars, of street automobile right of give the ing, bring to sаid cars and thus to to streets”; plaintiff that along over said police patrol duty, his when or- City and that was was a of Kansas officer police patrol in the by superior officers, take his seat dered driver, designated be driven himself to permit city point officer, to such in the superior appointed plaintiff’s emergency calls sent go in necessary him answer it was was ordered re- at the time department; plaintiff take his seat emergency and to call an spond Avenue aforesaid, said Grand over driven, as and to Tenth maintained between sidewalks board between direc- supervision, no had Streets; Eleventh properly driven driver; he control, over tion dis- riding driver, designated “that, as call; and emergency answer charge of his duties the board passageway, narrow through said driving *9 aforesaid, Avenue, as and Grand Tenth Street near sidewalks, at or side- said opening between approached the north-bound car a street stop ear said to street of said duty driver it was the and walks way right of the to have police patrol said permit the and car street aforesaid; that the the sidewalks between through opening said into the car street he drоve before knew street car of said driver [April Term, CoüRT oe Missouri, Yol. 317. space narrow between sidewalks, said board or, exercise ordinary care, might known, police patrol have that said pro- was ceeding’through opening very rapid between said sidewalks at a pace, and that police expected the driver of said driver stop the street point car at a south of said board sidewalks and give police patrol right way through the said said opening, but that the driver of carelessly said street car and negligently failed to a rapid pace and drove same at northward over the tracks, and side- north-bound between board walks aforesaid, so that rid- police plaintiff was ing and the space street negligently driven into the sidewalks, collision,” said board plaintiff injured came into thereby. general The answer is a denial. Appellants
I. peremptory contend their that instructions requested nature of evidence, plain- demurrers to the at the close evidence, tiff’s have case and close all the should renewed at the given, refusing the trial court such been erred Custom. petition plead, does is claimed that the instructions. general, establish, does not the existence the evidence part of practice appellants on the and notorious custom uniform meeting their street cars when motormen and their opposite direction in which approaching from the patrol automobile pleaded it is neither nor traveling, are ears plaintiff and the driver of the the evidence shown up- knowledge such custom and of the existence of relied patrol had casualty. petition specifically at time on its observance practice long and re- the custom and the has alleges that “it operators of rail- time herein plaintiff lied bring approaching, automobile cars, police patrol way to the give stop and thus to cars to a said street While the along said streets.” evidence patrol over universality alleged conflicting existence as sharply say no substantial evidence yet that there is cannot custom, we custom. Both universality of such existence they knew of the exist- testified that automobile driver at the upon its observance relied and that of the custom ence (although is true casualty. motorman Appellants’ time testimony) that he testified qualify later such attempted that he stop his car whenever duties, of his instructed, part had been custom; that, had he siren; followed that he he heard approach- known the the siren and heard that it We think immediately stopped his car. ing, he would weigh instructions, jury, proper under province therein, respecting the exist- conflict and to evidence, reconcile *10 v. 535 1927] ence and universality of the custom. Railway v. Co., 126 [Percell Mo. App. While we think that the existence of the custom was 43.] sufficiently pleaded herein, nevertheless it has been ruled in this that, State inasmuch as custom is not substantive in character, but merely evidentiary of defendants’ negligence, it necessary is not pleaded. custom shall be Telephone v. Co., Mo. 115 [Brunke App. 36; Caldwell v. Payne, 246 S. 312, 317; W. Railway Gordon v. Co., 222 Mo. 536; Cassin v. Lusk, 277 Mo. 663, 678.] 516, Appellants regardless contend that of whether was, the motorman or was not, negligent failing" in his ear upon patrol, nevertheless such act or omission of motorman, negligent omission, if found to be a act or was not the proximate Proximate plaintiff’s cause of injury. urged It is Cause. undisputed that, evidence is had the automobile con- tinued, changing withоut course, its along railway track, the west it passed would have the street railway the east track with- coming in therewith, out any contact danger without of a col- words, lision. In other it by appellant is claimed appears that it all the evidence the case that an independent, intervening and cause—namely, efficient the act pedestrian in stepping off the west platform directly on-coming police in front of the patrol, thereby causing the driver of the
to swerve or veer east, left, the automobile to response ato impulse, striking humanitarian avoid injuring as to pedestrian, which appellants over act had no and which control their anticipate—was motorman proximate had no reason to cause of collision, independent without the intervention of which efficient cause the collision would not have occurred. question proximate may
While the determination of the cause court, ordinarily sometimes be one law it is one of fact for jury. the consideration and determination of the v. Rail [Laughlin 28; Co., 465; Railway Co., Mo. Kidd v. 310 Mo. 1, 275 459, 121; Co., App. 105, v. Johnson Construction 188 Mo. Gilman Flem ing, said, Railway Company pointedly 265 S. W. It is 106.] ‘‘ Kellogg, is, proximate S. 469: that what is U. The true rule 94 question jury. injury ordinarily It is cause is for the knowledge. legal question It is to be determined as a of science or of attending fact it. . . . In fact, in view of the circumstances of every a succession of things, is transaction the nature there dependent preceding, and it is the events, upon those more or less facts, province events or to look at this succession of naturally probably connected with whether are ascertain by new and sequence, or are dissevered each other a continuous in view of independent determined agencies, and this must be ’’ time. existing circumstances op [April Term, CouRT Yol. 317. Missouri, rule, proximate, injury The as to when cause of the is in thus “ clearly Cyc. if stated 491: be the efficient sufficient it leading up cause which set in motion the chain of circumstances injury, natural, sequence, unbroken continuous cause, pri- new and independent produced the mary will so linked and cause cause where *11 succeeding con- bound to the all or become a events that create in- the whole, operating tinuous one so others as to make the the primary the result the cause.” 1, Negligence (6 Ed.), In Shearman & Redfield on the Law of vol. be- p. 66, clearly is connection 32, sec. the rule thus stated: “The injury may plaintiff’s the negligence tween the defendant’s and intervening defendant, the broken an In order to excuse cause. superseding however, intervening re- this he either a or a catósemust cause, intelligent not, sponsible whether or superseding is a cause. It entirely supersedes operation negligence if it defendant’s contributing negligence slight- alone, without his thereto that degree, . . . But the connection is not produces est intervening might, in the actually broken, is if the event one entirely anticipated as not ordinary things, be natural and course of negligence an link defendant’s is essential improbable, ours.) (Italics the chain of causation.” Light J., Co., 606, 625, v. 195 Mo. Marshall, In Electric Harrison this court on speaking court, prior decisions of for this reviews the this question and announces conclusion: proximate cause if that foregoing . . sufficient to demonstrate But the eases are negligence his combines with that negligent a defendant intervening cause, independent, he is liable another, with other or negligence proxi- although negligence sole sole his negligence indеpend- such cause, although without other mate produced injury.” intervening ent, would not have cause the conclusion law foregoing approval, with decision is cited Light & followed, in Hickman Power has v. therein announced Light Co., Co., City & Traction 570,W. and Hohimer S. App. 138, 218 Mo. principles law foregoing to the facts
Applying the rules unwilling say, as a matter evidence, we are circumstances law, alleged negligent or omission the motorman that the act plaintiff’s in- failing cause of his car was not negligent jury, alleged act or that the such connection between plaintiff’s sequence of events immediate- injury, or succession resulting ly negligent motorman following alleged such act of the entirely inde- or broken plaintiff’s injury, dissevered we words, In other pendent, intervening superseding cause. under all the circumstances province jury, it was the think 1927}
evidence, determine, as a matter of fact, plaintiff’s whether injury proximately alleged resulted from the negligent act omission of ’ defendants motorman. ¡herein The evidence tends to show that, had the motorman been reasonably attentive to the patrol, he could have its approach discovered in time stopрed to have the street car car before the a position reached railway on the opposite, east track or in proximity to, immediate platform. loading west There substantial evidence that the street car traveling was in motion and toward approaching police patrol when pedestrian stepped off platform loading the west and the driver patrol swerved east, automobile to the or left. The defendant’s motorman tes tified he making loading platform at the east police patrol he-saw “coming me,” in towards from which tes timony jury might reasonably properly in drawn the was still in ference motion when the swerved or veered toward the appears street car. It therefore alleged negligent act of the motorman had not ceased at the time pedestrian stepped platform, west but *12 up act of very the-motorman continued to the moment of the collision. most, pedestrian stepping loading Ait act-of the from the west platform directly thereby on-coming police front of the patrol, causing the police patrol driver of the to veer the automobile to the injuring left' to pedestrian, avoid Was concurring cause plaintiff’s injury, wholly independent superseding not a completely entirely cause which or dissevered broke the con alleged negligent nection between the act of defendant’s motorman plaintiff’s injury. alleged negligent In words, other or act proximate plain omission of -the motorman was one of the causes of injury, may notwithstanding tiff’s the fact that other causes have participated injury. or concurred therewith cause the [Newcomb Light Co., Co., 409, 422; v. 169 Mo. Harrison v. 195 Mo. Railroad 570, 606, 623; Light (Mo. Sup.), 226 W. Hickman v. & Power Co. S. Light Co., App. 138, & 574; Hohimer v. Traction 218 Mo. 150.] pedestrian in step- Furthermore, say we that the act cannot path of ping directly into the loading platform from the west circumstance, as or approaching police patrol happening, such a anticipated by reasonably the motor- or -not have-béen foreseen could casualty oc- appellants’ street ear. The operating man Anticipated business district public street cursed Injury. and at a time day, of the city during noon hour number show) considerable were a (the there evidence tends platform. The evi- loading using and the west persons the street occupied street car that, when a north-bound tends to show dence also loading plat- opposite the west railway position at a track the east feet between twelve space, most, of but ten or was a form, there op [April Term, Vol. Missouri, CouRT loading platform through ap- and. west which such street ear pass. It proaching' appears could the evidence to customary police patrol, traveling for the on have south pursue Avenue, approximately near, Grand a course and im- right of, mediately roadway to the the middle of the and astride the west, railway south-bound, or track. It is a matter of rails knowledge pedestrians frequently common and observance heedlessly attempt approaching in front of ve- cross hicles, operatives of street cars motor vehicles should al- ways consequences conduct alert to avoid the of such heedless part beyond pedestrians. Besides, think that it is not we probability, reasonably the bounds of reasonable and therefore to be anticipated by motorman, rapidly the front wheels of the patrol might or approaching police come contact with a loose rock object, depression pavement, other inanimate strike thereby suddenly east, left, causing police patrol to veer previous course, and, passageway reason the narrow from its railway east track moving between a street car with the mov- platform, west be caused come into collision turn the ing the driver of the could street car before prior is not that de- back into its course. essential very injury have which re- motorman could foreseen the fendants’ anticipated sulted, he exact manner could have occur, negligence of injury if the defend- did but it sufficient v. ants’ motorman was cause [Buckner 606, 700; Light Co., Mo. Harrison v. 195 Mo. Co., Horse & Mule Louis, 110; Danesehocky Sieble, v. 629; 98, v. 248 Mo. St. Benton 470, App. 195 Mo. 479.] the an thoughtful consideration to given careful We legal Borack v. Safe of this court in nouncements and conclusions 83; Railways 526; Co., 296 Mo. and Wood Co., 288 Mo. DeMoss analysis appellants, 270 W. cited but Wells, S. *13 predicated law in those upon conclusions of facts which our legal applicable are not us that such conclusions cases convinces by in the case the evidence facts and circumstanсes disclosed the rightly refused the opinion the trial court of the bar. We are herein, for we requested by the defendants peremptory instructions jury by the of fact to determined think that it was matter evidence, in the whether, in all facts and circumstances view of the when, negligent failing stop in his car was defendants’ motorman reasonably could have by hearing sight, and he of his senses of the use stopped the police patrol in time have approaching discovered the west end of the ear the car reached south before the de matter fact for think that it was a platform. we Likewise, 1927] v. FlemiNG. jury omission of whether act or the motor
termination plaintiff’s man was a cause of assign plaintiff’s in Instruc- Appellants giving
IT. error P-1, is as follows: tion you from instructs that if believe find
“The court and February, plaintiff day evidence that on the 16th automobile, patrol riding police on Avenue in was south Grand was; emergency call, he evidence, response mentioned in in to an if place that at said time and there was an ordinance in force City, Missouri, police, department, Kansas fire fire providing that patrol, have United States mail vehicles and ambulances shаll street, and cars that street Instruction. right way streets, have the between cross over except provided in ordinance, all other vehicles said city permitted said ordinance of of sirens vehicles an use police belonging department city, emer- responding to the calls, place years gency at said time for some prior thereto custom had been observed defendants’ motor- men, knowledge plaintiff and the driver of the said patrol automobile, bring upon ap- street cars full to a police patrol proach responding emergency automobile to an warning call given by approach, whenever a siren of its and to keep stopped such street car until said should automobile you passed; if have find further from believe the evidence that at the prior time of the collision in evidence, mentioned thereto, plaintiff driver auto- said mobile custom, knew of and relied said ordinances said any; you if and if further believe and find from the evidence that plaintiff, riding upon while automobile, men- evidence, responding tioned in emergency call and that point approached as it automobile evidеnce, gotten collision mentioned after it had Grand Street, Avenue 7th intermittently sounding the siren evidence, thereon mentioned in employed and that the motorman defendants, operating the northbound street car mentioned evidence, saw the exercise of ordinary care could have and knew, seen or could known, by ordinary exercise part, care on said time stopped to have said street car before the collision mentioned evidence, and that the said motorman negligently neglected to so said if did, he that as direct result of the negligence, any, if the said street car collided with the said police patrol automobile and that as a direct result of the said negligence, any, if injured, your then verdict *14 plaintiff.” must be for the Term, [April 317. op Vol. SupReme Missouri, Court submitting to erroneous the instruction that claimed It is to responding patrol police the that hypothesis jury the
the police that no evidence there is call,” whereas ‘‘emergency an show to tends The evidence run. emergency making patrol ordered patrol were driver plaintiff that Streets Oak Twelfth proceed with superior customary their it was that call, and ato answer far as either So the call. nature precise them the tell officer responding they may have been knew, driver plaintiff or dis- peace or other of the breach prevent some call, riot or Presumably, safety. welfare public inimical turbance time, .in as short destination reach their expected were they reasonably could be route, as by as direct origin the call. place of headquarters driven from believe term, we understanding and use of ordinary In the desig- may responded properly be that the call to jury that the not think “emergency call.” We do nated as an “emergency call,” nor do we think term misled the use of the beyond mentioned, can said to be instruction, respect scope the evidence. -that, instruction is while against the Another criticism leveled jury being required the to find siren the instruction intermittently police patrol approached point as the sounded collision, require jury motorman it did not to find operating defendants’ street car heard the siren. The instruction require jury did to find that the motorman “saw ordinary knew, exercise care seen could have have could known, by ordinary part, apprоach the exercise of care on his of the stopped of the said automobile in time to have street car be- Knowledge fore collision.” existence fact usually of the ordinarily acquired by sight means of the senses of hear- ing. jury found, If the evidently did, that the motorman knew, or by ordinary the exercise of care could known, approach police patrol, then it not, matters far as xve see, whether apprised the motorman police patrol, or could have known approach, of its by the (cid:127) sight senses of both hearing, by only one regard senses. We the criticism hypercritical. of the instruction as Viewing the instruction as a whole and in its entirety, and con- sidering thereof, the context we do not believe that the instruc- tion was misleading jury, opinion and hence we 'are of the that.no reversible error was committed court in trial giving of the instruction. III. Appellants assign error in the refusal of requested their ‘‘ D-2, Instruction as follows: The court instructs the 1927] *15 = a. motorman to require not does
the stop read in evidence- ordinance .instru This meeting patrol.” police his same is car e ordinance, of Kansas' of a construction tion calls for Ordinance. evi put in petition and рleaded in which was Section 5 of appellants that by It is by- plaintiff. dence insisted al-.. as .measure upon ordinance, relied said - duty imposes no motorman, omission of the negligent act or leged approach police of stop upon his car upon the a. motorman provides ordinance section of patrol automobile. said -mail United States "police, department, patrol, fire fire vehicles. right way any of street” and have the and ambulances shall .police patrol "that, -upon approach any apparatus, of fire or: up practicable near as ambulance, every vehicle as shall draw right remain at a standstill of the street and until curb the. apparatus, patrol.or passed.” urged is shall have It ambulance every requires up appellants which vehicle to that the clause draw right practicable near as of the street and to remain as curb upon ap approach any police at a standstill of has no upon plication track,. which a fixed there-' to a street runs by making impossible up it car be drawn right curb, of further view the fact that Section and specifically "vehicle,” word ordinance defines the as used
therein, wheels, including "everything except as runners, baby carriages.” street cars pro and The last clause of Section 5 of immediately vides "the driver a street car shall upon it keep stationary and apparatus.” fire It descriptive seems clear to apparatus” us words "fire not intended the framers of the ordinance include s patrols, United mail States vehicles ambulances, which vehicle are specifically mentioned connection department with fire ve (cid:127) hicles the first clause of Section 5 ordinance, which clause grants to all such right described way vehicles the in any street. If the framers the ordinance had intended that the ordinance mandatory upon it should make the driver aof street ear im mediately bring complete his car to a and full stop, keep and to it stationary, approach of any police patrol, United States mail vehicle ambulance, the last of Section 5 clause doubtless would have been so as to include such vehicles, drawn together department with fire apparatus or vehicles. On the contrary, the last 5 expressly clausе Section mentions plainly singles out apparatus” "fire manifestly operation excludes from patrol, clause United mail States vehicles and ambulances. recognized One the well rules the construction of public ordinances and application statutes maxim, “expressio wiius est exclusio alterius.” Therefore, it accepted generally Term, [April Missouri, Yol. 317. Court enumerates an ordinance statute that, where
rule construction it operate, is to thing particular prescribes all operation effect from its excluding as be construed is to af- “The Cyc. things expressly mentioned. those 1122-] [36 may be jurisdiction which the description of the cases firmative in other power of such negative on the exercise implies exercised that a argues Plaintiff L. R. cases.” C. 982.] [25 a street over in a street given patrol cannot be complete a full brought car be car unless the street passed the patrol has stationary held until after the seqmtur. however, a non argument, this regard street car. We accord in full may feasible, apparently possible well *16 a ordinance, for the of the with police manifest intention of the framers mere way by the given the of to be bringing the slackening car, without speed of the stationary. If the holding it complete street car stop to a they otherwise, doubtless framers of intended the ordinance had expressly would mentioned ve- have included concluding mandatory clause of apparatus” hicles “fire with the 5, they Section did not do. which see fit to municipal a meaning construction and ordinances is question of law for the “The determination of the exist- court. questions law, ence and proper construction are of statutes provisions permits jury an to instruction which the construe the a Thus, give statute is erroneous. it erroneous an instruc- is to tion permitting jury a to whether a determine master has violated a statute guarding machinery, as to without obligations the stating imposed employer by on . . the statute . the The construction municipal question court, ordinances also a for the it is to jury, error submit court, to without construction by the the an ordinance, meaning is, point controversy, of ivhich as perfectly (2 Ed.), Instructions clear.” to Juries [Blashfield’s 1, 68, vol. sec. pages “It is the exclusive function of 135-138.] meaning the court papers to construe and declare the and dоcu- . ments, . like . ordinances and domestic statutes. The con- may papers struction of these and documents not be submitted jury.” 8, (2 Ed.), pp. to Juries sec. Instructions [Branson’s City 8, Odessa, App. In 76, 82, per- Barton v. 109 Mo. it is 9.] objection tinently said: this “The instruction is it left jury apply ordinances, these which the law contained city, the may in their own without direction court. question a of fact been whether ordinances were in force, having answer, but that fact admitted defendant’s application a solely their became matter of law for the construction syllabus, Fed. Peoples, In Sadler court.” “Where supported by opinion, introduced reads: ordinance 1927]
in evidence, and which bearing question has in issue, is not clear in its meaning, it is error to submit the to the jury ease with- out a construction of such ordinance the court.”
The harm appellants by occasioned to the refusal"of their In- readily struction D-2 apparent. Plaintiff, by P-1, his Instruction presented theory his recovery, jury submitted to the question negligence of the motorman in violating loth alleged ordinance and the custom, jury, effect, and told they if found and believed from the evidence “that said motor- man negligently neglected car,” said streеt their verdict plaintiff. must be for the The evidence respecting existence universality alleged sharply conflicting, custom was it strenuously throughout contended defendants trial general there part existed no and uniform custom on the defendants’ motormen meeting their street ears when' opposite from an approaching street cars direc- meaning tion. The may of the ordinance in evidence not have been lay clear jury, minds of the have understood may and construed the require ordinance to motorman to bring complete stop stationary street car proach beep ap- police patrol, as well ap- of fire paratus. knowing jury, by We have no means of whether the their verdict, negligence violating convicted motorman of ordinance, failing alleged custom, to observe the or of both. sharp In respecting view of the conflict in the evidence the exist- may alleged custom, ence of have reached the con- *17 existed, that, nevertheless, that no such uniform custom but clusion failing in in the motorman violated the ordinance evidence to complete keep stationary it bring his car to a until the passed car. trial court should the street The meaning as to its construed the ordinance instructed thereby requested D-2, in defendants’ Instruction operation, as jury any misunderstanding the minds of removing operation meaning of the ordinance with misconception of the appellants’ motorman, negligence to the issue of respect by plaintiff’s Instruction P-1. We are submitted them error was committed trial opinion that reversible learned requested defendants’ Instruction in the refusal of D-2. court alleged admission of in evidence and the re- Other errors assigned by appellants. requested instructions are We fusal opinion a discussion of this prolonging no reason for see case, Doubtless, testimony a retrial of assignments. substance, manner and in different instruc- may be offered language requested from those may in form and at the differ tions rendering inapplicable the criticisms trial, thereby raised last urged by appellants strenuously that the appeal. While it is this Term,. op [April Vol. 317. Missouri, Coukt D-15, relating- court erred in refusal of their Instruction when, their, general motormen to cars alleged custom of the not meeting police patrol automobile, a are that the we cоnvinced in- guilty error the refusal of such trial court reversible language it in which was peremptory struction in the form and requested. presented and pointed of the error out herein refusal follows, because aforesaid, judgment D-2 Instruction defendants’ of. the cause remanded for retrial.'
the trial court must reversed and be C., Ellison, sitting. Lindsay, C., concurs: not It-is ordered.- adopted opinion Seddon, C., foregoing PER. CURIAM: The judges except concur, Gantt, All opinion of the court. J.,~ sitting. not Joseph H. Willoughby, Mrs. Laura Budde Willoughby,
Ben
Lucy
Briqueleur, Appellants, William
Brandes,
Doro
Mrs.
Mary
Willoughby
thy
and Anna Brandes.
Ann
Brandes,
Division Equity. setting aside of a after Submission: 1. TRIAL: Evidence them, submission, equity parties, or either a order suit broadly resting may inadvertently omitted, is a matter offer evidence although court; discretion of the submission within sound plaintiffs’ application without notice set aside on the defendants received, absence, if evidence was in their and some further counsel a testimony plaintiffs’ transcript counsel was" furnished opportunity and to later cross-examine the witness afforded evidence, they declined, countervailing not it will offer which offer discretion, an abuse in the absence of a ruled that there wаs of the court’s showing prejudice plaintiffs. resulted Vary Allegation Deed: Intention: of Fraud 2. EVIDENCE: To Reply not Grantor’s Only. fraud, mistake, accident or oral evidence In absence instrument; vary, impeach contradict written :admissible reply, petition, averments of fraud in the furnish And if there are none in the do impeach warranty reception deed. evidence to basis for allega- petition where cancel and set aside deed contains no mistake, testimony grantor it is not exclude tion of fraud or to the effect error convey that, notwithstanding purporting executed a deed she described, convey grantee to the mere the fee’-in land in she intended to that such life and he at time knew was her intention. estate *18 Foreclosure: Deed of -Trust: as Purchaser: 3. CONVEYANCE: Equities the deceased owner Widow placed upon a deed of trust of Heirs. foreclosure of land wife, and his a trustee’s deed to the holder of the mortgage notes, of the regarded mortgagor’s and deed him the widow for the amount sale, mortgage expenses should be notes and the the foreclosure widow; legal conveyance, single conveys title against mortgagor’s equities as whether the heirs retain enforceable but