Hornstein v. United Railways Co., 97 Mo. App. 271

Hornstein v. United Railways Co.

97 Mo. App. 271 | Mo. Ct. App. | 1902

Lead Opinion

BLAND, P. J.

— Defendant insists that its demurrer to plaintiff’s evidence should have been given. In the circumstances of the case negligence of defendant is not to be inferred from the mere happening of the injury. Murphy v. Wabash R’y Co., 115 Mo. 111; Yarnell v. The Kansas City F. S. & M. R’y Co., 113 Mo. 570; Harper v. Standard Oil Co., 78 Mo. App. (St. L.) *277338; Breen v. The St. Louis Cooperage Co., 50 Mo. App. (St. L.) 202.

There is no evidence- in support of the first, second or fourth allegation of negligence in the petition. In respect to the third allegation of negligence, the failure to give the warning signal, it is unquestionably the law that the duty of the motorman in charge of the car running north was to have sounded the gong on approaching the crossing. The omission of this duty was negligence. Dixon v. The C. & A. R’y Co., 109 Mo. 413; Weller v. C., M. & St. P. R’y Co., 164 Mo. l. c. 195.

While there is no direct proof that the signal was not given, there is negative evidence of the fact, and it was within the power of the defendant to have proven affirmatively by the motorman in charge of the car, if it was a fact, that the warning was given. Defendant failed to produce the motorman as a witness or to account for his absence. The negative evidence of the failure to give the warning signal and the failure of defendant to prove affirmatively that it was sounded, if such was the fact, was sufficient proof of the third allegation of negligence to send that issue to the jury, and. there was no error in refusing defendant’s peremptory instruction, unless the evidence is all one way that plaintiff was guilty of such contributory negligence as to preclude his right of recovery, notwithstanding the defendant was guilty of negligence in failing to give the warning signal.

The plaintiff testified that he looked for the northbound car as he was moving out of his car but he saw none; that he looked and listened when he got off, but that he neither saw nor heard the approaching car. He could not see on account of the obstruction caused by the car he had just left; looking, under the circumstances, was a useless performance. The car from which he had alighted, he testified, began to move away when he was in the middle of the west track. Had he then halted but for one moment, the car that was obstructing his vision would have moved away and he could have seen the north-bound car, but he did not *278take this precaution. He moved on towards the east track without halting' or hesitating and arrived sufficiently near that track just in time to come in contact with the corner of the vestibule of the ear. This was negligence of the most pronounced sort. It was plaintiff’s duty, in the circumstances, to have stopped and waited until he could see whether or not there was an approaching car on the east track before blindly proceeding to cross over that track. Weller v. C., M. & St. P. R’y Co., 164 Mo. l. c. 198; Dlauhi v. St. L., I. M. & S. R’y Co., 139 Mo. 291; Kelsay v. The Mo. Pac. R’y Co., 129 Mo. 362; Childs v. Bank of Missouri, 17 Mo. 214; Easley v. The Mo. Pac. R’y Co., 113 Mo. 236; Culbertson v. Street R’y Co., 140 Mo. 35; Pinney v. M. K. & T. R’y Co., 71 Mo. App. (K. C.) 577; Lien v. C. M. & St. P. R’y Co., 79 Mo. App. (K. C.) 475. Common prudence would have dictated, when the south-bound car began to move away, that the plaintiff stop for a moment that he might have an unobstructed view of the east track and see whether or not it was safe to proceed across the street. His failure to exercise this precaution was negligence, and there is no escape from the conclusion that this act of negligence contributed to and was the proximate cause of his injury; where this is the case the law is well settled that no recovery can be had. Weber v. The K. C. Cable R’y Co., 100 Mo. 194; Hogan v. Citizens’ R’y Co., 150 Mo. 36; Moore v. K C., Ft. S. & M. R’y Co., 146 Mo. l. c. 580; Corcoran v. St. L., I. M. & S. R’y Co., 105 Mo. l. c. 405, and cases cited; Tesch v. Milwaukee Electric R. & R. L. Co., 53 L. R. A. 618.

My associates are of the opinion that the case was one for the jury on the question of plaintiff’s contributory negligence, but that the court erred in refusing the following instruction asked by defendant, to-wit:

“If you believe from the evidence that the injury to the plaintiff was caused by the joint, mutual and concurring negligence of plaintiff and defendant’s agents in charge of the car, and that the negligence of neither, without the concurrence of the negligence of the other, *279would have caused said injury, then the plaintiff is not entitled to recover, and your verdict must he for the defendant,” for which the judgment should be reversed and the cause remanded.

The judgment is reversed and the cause is remanded by the concurrence of Barclay and Goode, JJ.;

Bland, P. J., thinks the case should be reversed without being remanded. '

Rehearing

ON MOTION EOR REHEARING.

PER CURIAM.

— It may be well in acting upon this motion to state that the majority of the court entertain the opinion that the testimony tended to prove negligence on the part of the defendant company in failing to give the appropriate signals of the approach of the north-bound car, if not in other particulars of the negligence alleged in the petition.

The majority of the court consider that some of the instructions refused might well have been given, especially the one heretofore quoted in the opinion of the court.

The majority of the court are further of the opinion that the question whether plaintiff was guilty of contributory negligence directly conducing to his injury was, on the facts disclosed at the last trial, a question of fact for the jury.

The motion for rehearing is overruled, in which order all the judges concur for the reasons already given in the main opinion and in this memorandum.