Hough v. St. Louis Car Co.

146 Mo. App. 58 | Mo. Ct. App. | 1909

REYNOLDS, P. J.

(after stating the facts). — ■ Counsel for defendant assign five errors, upon which they rely as ground for reversal. The first and second errors assigned are to the first and second instructions, given of the court’s own motion, while the third, fourth and fifth assignments are to the refusal of the court to give the fourteenth, sixteenth and seventeenth instructions, as asked by the defendant. The first instruction given counts upon the negligence of the defendant in running the automobile at a speed in excess of that allowed by the ordinance of the city of St. Louis. The error assigned on this instruction is that it is not supported by the testimony in the case; that plaintiff’s own witness, the motorman, testified that he did not know how fast the automobile was going. We do not think this objection tenable, nor do we construe the testimony of this witness to be as claimed by appellant’s counsel. The point is made as to the testimony of this motorman, that he was not shown to be competent to testify as to the speed at which the automobile was going. We think his testimony shows the contrary. In itself, and under the testimony as to speed, this instruction is correct and is sustained by the evidence in the case.

The second instruction given by the court of its own motion is as follows:

“2. You are further instructed that it was not only the duty of the plaintiff in the circumstances shown by the evidence in this case, and whilst she was on a public highway in the city of St. Louis to exercise ordinary care for her own safety by both looking and listening for approaching cars and vehicles upon the street which might come in collision with her, but it was also the duty of the defendant’s servant or agent in driving its said car to exercise ordinary care by looking out for persons on the street ahead of its car who were apparently in or approaching a point of danger of collision with his car, and upon the appearance of such danger to use ordinary care to avoid injuring any such person; and the court further instructs you that whether or not, as a matter of fact, the plaintiff sano the approaching car in question or whether or not the defendant’s agent or servant in fact saw the plaintiff approaching or in a, place of danger, each is presumed and held by law to have seen the other, if either or both had an unobstructed view of the street for a sufficient distance and length of time to avoid a collision by the exercise of ordinary eare.

The words particularly objected to in this instruction are those we have underscored. We are compelled to hold this instruction, with these words included, is erroneous and that the giving of it is reversible error. There is not only no evidence to support it, but it is a presumption against the evidence, and under the facts in the case and of the defense of contributory negligence, it should not have been given. As is held in many cases, the law does not presume facts which are disproved by the evidence.

Referring to the refusal of the fourteenth, sixteenth and seventeenth instructions asked by defendant, counsel for defendant contend that they were entitled to have their defense of contributory negligence placed in a more concrete form before the jury than was done by the instructions given by the court. We do not agree to this, as we think the instructions the court gave for plaintiff and defendant were as specific and as concrete as either party was entitled to ask. This disposes of the assignments of error advanced by counsel for the defendant.

Looking into the record, we discover no error in the ruling of the trial court in the admission or exclusion of evidence. But there is an error of so grave a character appearing of record that we are compelled to notice it, although our attention has not been called to it by counsel. The first instruction, given by the court of its own motion, submits the question of negligence of the defendant, occasioned by the violation of the speed ordinance of the city; and the second instruction, as will be seen, counts upon the lack of ordinary care upon the part of the defendant, — common-law liability for negligence; the third instruction tells the jury that if they find from the evidence that plaintiff was negligent in attempting to cross the street, yet if they further find that defendant’s agent or servant in charge of the car, either saw or, by the exercise of ordinary care, could have seen the danger of plaintiff’s position in time to have avoided the collision, but failed to exercise care and negligently allowed the car to collide with plaintiff and injure her, then plaintiff is entitled to recover; in brief, instructing on what is called the “humanitarian” or “last chance doctrine.” In the recent case of Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S. W. 78, our Supreme Court, in a case in which the instructions are very much in line with those here given, held that they were inconsistent, in that instructions on negligence of defendant are inconsistent with an instruction on the so-called humanitarian doctrine; that is to say, the Supreme Court holds that where a plaintiff relies upon the fact that he was not guilty of contributory negligence and that the injury was caused by the negligence of the defendant, then plaintiff is not entitled to an in-' struction on the so-called humanitarian doctrine, but that by invoking that doctrine, plaintiff confesses that he was guilty of negligence and therefore is not entitled to instructions authorizing a verdict in his favor on the finding by the jury that he was not chargeable with his contributory negligence, provided the defendant could have prevented the accident. That error was committed in this case, and it is reversible error.

For the reasons above given, the judgment will have to be reversed and the cause remanded, which is accordingly done,

all concurring.