171 Mo. App. 430 | Mo. Ct. App. | 1913
Lead Opinion
The injuries for which plaintiff brought suit and recovered judgment were caused by his coming in collision with one of defendant’s interurban cars running on its road extending from Carthage, Missouri, through Webb City and Joplin to G-alena, Kansas. The cars are propelled by electricity and the road is what is termed a trolley line, running single cars thereon. The collision occurred at a public road crossing south of Webb City. This public road runs east and west and forms the southern boundary of that city. The defendant’s car line crosses this at right angles. The plaintiff was traveling eastward along this road on a motorcycle .and defendant’s car was going south. The result was that they collided at the crossing and plaintiff was severely injured, his skull fractured and he received such permanent injuries therefrom as will justify a judgment of $7500, provided defendant is to be held responsible for his injury.
As is usual in this class of cases the plaintiff claims that the accident was wholly due to the fault and negligence of defendant. On the other hand the defendant says that plaintiff was not without fault and negligence on his part and that his injuries were caused wholly or partially by his own negligence. The specific acts of negligence set out by plaintiff in his petition are: 1st. Negligently failing to ring the bell or gong thereon at a distance of eighty rods from said crossing and to keep same ringing until said car had crossed said highway; and also failed to sound the whistle on said .car at a distance of eighty rods from said crossing and to sound said whistle at intervals
The answer of defendant, after admitting its incorporation under the general railroad laws of Missouri and its' operation of an interurban electric railway system for carrying passengers, is a general denial and this affirmative defense: “Defendant, further answering, says that the accident and injuries, if any, received by plaintiff, were caused solely and wholly by the fault and negligence of the plaintiff in that the plaintiff, riding a motorcycle, approached the track of defendant’s railroad from the west at an exceedingly rapid rate of speed, and without looking or listening for a car thereon, when by looking he could have seen, and by listening he could have heard, attempted to cross said railroad, and did cross the west track of said road with his motorcycle, when for some cause or other, plaintiff slipped- off the back end of his motorcycle and was caught by the east step of the car running on the west track of said road; all of which was without fault or negligence on the part of this defendant.”
The petition was originally in two counts and at the close of his evidence in chief, plaintiff, by leave of court, amended his first count by inserting the third ground of negligence as above mentioned. Thereupon defendant filed an affidavit of surprise and asked for
It will be noted that there are three grounds of negligence alleged by plaintiff with reference to the running of defendant’s car: (1) Exceeding the speed limit of fifteen miles an hour in violation of the ordinances of Webb City; (2) failing to ring the bell or sound the whistle not less than eighty rods from the public crossing as required by statute, section 3140, Revised'Statutes 1909, relating to railroads generally; (3) common law negligence in approaching and passing over a much traveled road crossing at a high rate of speed without giving any sufficient and timely alarm or warning of the approaching car. Much is said in the briefs of counsel as to whether or not section 3140, Revised Statutes 1909, requiring a bell to be placed on all locomotive engines and to be rung at least eighty rods from public crossings and kept ringing until it shall cross the road, or that a steam whistle shall be attached to the engine and shall be sounded and kept sounding at intervals for a like distance, should be made to apply to interurban cars propelled by electricity. It is argued by defendant that the reading of said section conclusively refutes the idea that it applies to anything except railroads operated by steam engines. This is an old statute and certainly was not intended when enacted to apply to other than steam railroads. On the other hand it is argued by plaintiff .and admitted by defendant- that defendant is incor
Whatever may be the proper solution of this question as to whether the particular signals and at the particular distances required by statutes primarily intended for steam railroads shall be applied to electric cars running at a high rate of speed through the country, it is of more importance to the instant case to note that all the authorities agree that the persons operating such electric road and cars are required, regardless of statute, to give effective and timely warnings commensurate with the speed and danger likely to result from running' the same. [Baker v. Railroad, 147 Mo. 140, 160, 48 S. W. 838; Cincinnati Electric Railroad v. Lohe, 67 L. R. A. (Ohio) 637; Aurora v. Traction Co., 81 N. E. (Ill.) 544; Spalding v. Railroad, 80 N. E. 327; Pacific Railroad v. Moffett, 44 Pac. (Kan.) 67; Elliott on Railroads (2 Ed.), secs. 1155, 1156; Booth on Street Rail
We need not decide this point or discuss the matter further for this reason: The principal instruction given for plaintiff and the only one covering the entire case and directing a verdict for plaintiff is on the conjunctive or cumulative plan as follows: “If the jury find and believe from the evidence in this case that the defendant, on the 30th day of October, 1911, was running and operating an electric railway between Carthage, Missouri, and Galena, Kansas, and through the corporate limits of the city of Webb City, and that the tracks of defendant were laid across a public highway in Jasper county, Missouri near Mount Hope Cemetery, and if the jury further find that defendant’s right of way and tracks, from a point more than eighty rods north of said crossing, extended south through the outskirts and in the corporate limits of Webb City, and up to the boundary of said public highway and crossing, and if the jury further find from the evidence that on said day plaintiff was traveling on said highway at the point of crossing of defendant’s tracks, and that plaintiff was in the exercise of ordinary care on his part, and that the servants and employees of defendant in charge of the car mentioned in evidence, in operating and running said car negligently failed, in approaching said crossing to ring the bell thereon at a distance of eighty rods therefrom and to keep same ringing until said car had crossed said highway, and also failed, in approaching said crossing, to sound the whistle on said car at a distance of eighty rods from said crossing and to sound said whistle at intervals until said car had crossed said fiighways — if you so find — and if the jury find that defendant’s agents and servants in charge of said car negligently approached said crossing at a rapid and dangerous rate of ¡¡speed without giving any warning sufficient to notify plaintiff and travelers approaching and about to pass
It will be noted that this instruction required the jury before finding for plaintiff to find defendant guilty of negligence on all three grounds mentioned in the petition. It is the well settled law that where an instruction predicates plaintiff’s recovery on several grounds of negligence, all of which must he found for plaintiff before he can recover, then, if any one of such grounds constitutes actionable negligence and is supported by the evidence, that is sufficient. The defendant cannot complain that the jury were required to and did find more than the law requires in order to make defendant liable. [Kendrick v. Ryus, 225 Mo. 150, 168-9, 123 S. W. 937; Baker v. Railroad, 122 Mo. 533, 548, 26 S. W. 20; Gibler v. Railroad, 129 Mo. App. 93, 101, 107 S. W. 1021.] In the Gibler case just cited, the court, page 101, said: “Complaint is made of the first instruction given for plaintiff, on the ground of lack of evidence to support it. Said instruction submitted to the jury all the charges of negligence made in the petition, and, as said, there was no evidence of
If the defendant was negligent, and the jury found it was, in running its car at a high and dangerous rate of speed in approaching the road crossing in question and did not give adequate and timely warning signals of such approach so as to notify travelers about to pass over the same, that is negligence enough, even if defendant cannot be held to a strict compliance with .the statute as to giving such warning signals eighty rods fromjhe crossing.
"What has just been said also applies to the rate of speed being in excess of that prescribed by city ordinances. The defendant contends that the place of the accident and its road approaching thereto were not shown to be within the limits of Webb City and so defendant was not governed by the ordinances of said city limiting its speed to fifteen miles per hour in the outskirts of that city; also that as it was then running its car on its private right of way and not on or across any street of that city, such ordinances did not apply. While neither of these contentions can be sustained and without in any way according to the correctness of same, it is sufficient to say that the jury found that defendant was guilty of negligence in the manner above pointed out without any reference to any speed ordinance, and that such other ground of negligence is sufficient for this case.
This brings us to the real questions in the case: Is the evidence sufficient to warrant the jury in finding-defendant negligent in running its car at a high rate of speed without giving adequate and timely warning-signals in approaching- the road crossing- in question;
Taking the evidnce most strongly in favor of plaintiff, as we must do on this appeal, we have no difficulty in answering the first of these questions in the affirmative. The motorman in charge of the car admits that he was traveling at twenty-five miles per hour and perhaps more. Other witnesses place the speed at a higher rate. What might be termed the physical facts are that the car was going down grade on a straight track and the motorman says he first saw plaintiff approaching the crossing when his car was some two hundred or two hundred and fifty feet therefrom and that he at once applied the brakes and used every effort to stop the car; and yet the car struck plaintiff with sufficient force to hurl him some forty-five feet over a cattle-guard and he could not stop his car for near two-hundred feet beyond the crossing. This strongly tends to show the high rate of speed. The danger signal, which was such as to attract the attention of a number of witnesses, was sounded at the point where the motorman says he first saw the plaintiff, that is, some two hundred or two hundred and fifty feet from the crossing. Several of these witnesses say that the regular crossing signal, different from the continuous danger signal, was sounded almost immediately before the danger signal and no other signals were given. We think the jury were warranted in finding that the car in question was being run thirty miles or more per hour and that no warning signal was given until the car was within some three hundred to four hundred feet of the crossing and that this constitutes actionable negligence.
It is claimed that plaintiff is conclusively shown to have been guilty of negligence in that, while approaching the place of danger, he did not take proper precautions for his own safety in looking and listening for an approaching car when to do so would have avoided the injury. This is the crucial point in the case. There is a wealth of learning on this point and the briefs leave little to be said as to the law; in fact, the difficulty is not in finding and declaring the principles of law applicable to this ground of negligence and counsel for the respective sides do not differ
Plaintiff says that on account of these obstructions he could not see up defendant’s track as far as the cattle-guard, two-hundred and fifty feet from the crossing, until within less than fifty feet of same; at which point he could see past the northeast corner of the curved stone wall entrance to the cemetery. At a point twenty-five feet from the crossing he would have a nearly clear view up the track to the top of the hill six hundred feet distant, though the track passed through a cut some six or seven feet deep at the deepest point between the cattle-guard and the hill top. In this matter plaintiff is corroborated by the motorman, who says he was looking to see if anyone was at or near the crossing as he approached it and that plaintiff first came into view from behind the stone wall
Plaintiff further says that, being somewhat familiar with the crossing and surroundings, he had the crossing in mind and was looking north so as to see any car approaching as soon as he passed the obstructions; that when he was at the point about fifty feet west of the crossing where he could then see about two hundred to two hundred and forty feet up the track, that he then looked and could see no car coming or hear any sounds of an approaching car; that he then looked south and saw.a clear track in that direction and was then close to the crossing; that he remembered nothing further until he was in the hospital a day or two later.
It is said in Porter v. Railroad, 199 Mo. 82, 96, 97 S. W. 880, that: “It is well settled in this State that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen. [Fletcher v. Railroad, 64 Mo. 484; Zimmerman v. Railroad, 71 Mo. 476; Baker v. Railroad, 122 Mo. 533; Stepp v. Railroad, 85 Mo. 229; Donohue v. Railroad, 91 Mo. 357; Butts v. Railroad, 98 Mo. 272; Schmidt v. Railroad, 191 Mo. 215.] ”
In Mockowick v. Railroad, 196 Mo. 550, 570, 94 S. W. 256, the court said: “(b) It needs no citation of authority to sustain the proposition that there was
In Kelsay v. Railroad, 129 Mo. 362, 30 S. W. 339 the-court states the law, page 372, as follows: “The duty of a traveler upon a highway in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains.and to avoid injury by them is well settled law, not only in this court, but perhaps in all the courts of this country. This rule imperatively requires him to look carefully, in both directions, at a convenient distance from the crossing, before venturing on it, if, by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is .obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see, it is the duty of the traveler to look. He cannot close his eyes and thereby relieve himself of the consequence of his own negligence. [Hayden v. Railroad, 124 Mo. 566.]”
It is also the law that this duty to use reasonable care to ascertain the approach of a train in dangerous
Whether plaintiff is guilty of negligence in failing to look and listen at a point nearer the danger zone is somewhat dependent upon his method of travel and other circumstances of the particular case. What would be negligence in this respect by one walking might not be negligence in one riding in a wagon or on a motorcycle. This is true for the reason that a person walking can control his movements and stop much quicker than while riding and having a team or machine to control. As said in Farris v. Railroad, 151 S. W. 979, “This rule is particularly applicable to persons traveling on foot, ‘since, the danger zone in such a case is so narrow, and it may be avoided with so little effort.’ ” [See, also, 33 Cyc. 1012.] As the danger zone widens so the looking and listening zone narrows. Nothing was shown in this case as to the distance in which a motorcycle traveling at four or five miles per hour could be stopped, except that plaintiff said he could not stop it within ten and possible not within twenty, feet. We are not prepared to say whether this is true or not.
While it is true that a person approaching a railroad crossing is not permitted to rely on the presumption that the car will be run at a lawful rate of speed and that the timely signals will be given as the ear approaches the crossing to the extent that he may neglect his own duty in using care to look and listen
In Moore v. Railroad Co., 157 Mo. App. 53, 65, 137 S. W. 5, the court said: “There can he no doubt of the proposition pertinent here that plaintiff was not required to anticipate defendant’s negligence; but, on the contrary, he enjoyed the right to rely upon its per-formence of duty. So relying, he was authorized to assume that if a locomotive were in the immediate vicinity, it would both comply with the ordinance by moving forward at a rate not to exceed eight miles per hour and sound the usual signals of approach. . . . Besides, as before stated, he was authorized to assume defendant’s locomotive would be sounding a signal if one were near. Having heard no sound, his act of driving forward with the horse under such control as to afford him an opportunity to save it from the collision entirely does not disclose such reckless conduct as would have justified the court in directing a verdict for defendant on the score of contributory negligence. Indeed, where the view of the track is obscured to within a few feet of the rail, as here, one on a highway may presuppose that the operatives of the locomotive are duly careful, and the precepts of ordinary care do not enjoin that he should go forward upon the ground to search out a danger which was ascertainable a few feet beyond by looking and list
This proposition is well stated in Campbell v. St. Louis Railway Co., 175 Mo. 161, 172 and 173, 75 S. W. 86, where the court said: “From the facts and circumstances shown by the plaintiff’s evidence the conclusion might reasonably be drawn that the deceased was guilty of such negligence, but unless that is the only conclusion that can reasonably be drawn from those facts and circumstances, the demurrer to the evidence Avas properly overruled. If the evidence was such that there could reasonably he no two opinions about it, then its effect should have been declared by the court as a matter of law, otherwise, it was a question of fact for the jury. [Gratoit v. Railroad, 116 Mo. 450; Weller v. Railroad, 120 Mo. 635.] ... It was incumbent on the boy to have used his eyes and ears before driving on the tract, and if all that these Avitnesses said was true he would have seen or heard the car if he had stopped and looked and listened. Whilst it is the duty of one under such circumstances to look and listen, and sometimes it is the duty to stop in order the better to see and hear, yet it is not always incumbent on him to stop for that purpose; whether he should do so or not in a given case depends on the circumstances, and if it is doubtful the jury are to judge of it.” To the same effect are Maness v. Railroad, 149 Mo. App. 259, 264, 130 S. W. 87; Weller v. Railway Co., 120 Mo. 635, 651, 23 S. W. 1061, 25 S. W. 532; Gratiot v. Railway Co., 116 Mo. 450, 21 S. W. 1094.
We conclude, therefore, that reasonable men might differ as to plaintiff’s negligence under the circumstances of this case; and that there is some evidence to sustain the finding that plaintiff exercised ordinary care for his own safety in approaching and attempting to pass over the crossing; and that the
Complaint is also made as to each and all the instructions given and refused. The length of this opinion forbids that the instructions be set out at length and defendant’s criticism of each discussed. We have examined them all in the light of defendant’s criticisms and find that they properly declare the law. The jury were told in the instructions given that a railroad track is a warning of danger and that every person about to cross the track is bound to look and listen for coming cars before attempting to cross the same; and that a failure to look and listen is negligence and prevents a recovery regardless of defendant’s negligence in operating the car; also, that it is the duty of the traveler not only to look and listen before entering upon the track, but if going at a rapid rate of speed to check his speed and to stop if necessary in order to have an opportunity to look and listen, and that a failure to do this would be negligence.
Of those refused, instruction D was properly refused because the court should not declare as 'a matter of law that it was negligence for plaintiff to fail to stop or check his motorcycle to enable him to see or hear the approaching car, regardless of his speed. [Esler v. Railroad, 109 Mo. App. 580, 83 S. W. 73.] Instruction C as given, required this provided plaintiff was going at a rapid rate of speed or if necessary in order to have an opportunity to look and listen. This was sufficient. Instruction II and I were properly refused because based in p'art on plaintiff having defective hearing and there was no evidence to support that fact. Instructions J, K and L are based on the humanitarian doctrine as contained in the second count of the petition, but as this count was dismissed that feature of the case disappeared and the jury had nothing to do with it. M was properly re
It results from these views that the case should be and is affirmed.
The case is therefore certified to the Supreme Court.
Dissenting Opinion
DISSENTING OPINION
Suit for personal injuries. Verdict for $8000. A remittitur of $501. Judgment for $7499 against the defendant, which brings its appeal to this court.
There are numerous errors assigned by the appellant, none of which are necessary to consider in this opinion except that based on the refusal of the trial court to give a peremptory instruction which defendant requested on the theory that the case made by all the evidence shows that plaintiff’s injuries were the direct result of controbutory negligence on his part'so palpable as to constitute negligence in law and bar a recovery.'
It is uncontroverted in this case that as plaintiff neared the tracks, after having passed the fifty foot point where he says he looked toward the north, the scope of his vision in that direction up the tracks became wider and longer, and, at a point twenty-five feet from the track on which he was struck, he could have
The testimony as to the rate of speed defendant’s car wras running is variously estimated at from twenty-five to thirty-five miles an hour; and it will be taken as conceded that defendant in running its car at this place — which was just within the limits of Webb City — much in excess of the rate of speed fixed by the city ordinance, was guilty of negligence. The defendant’s car was running seven or eight times as fast as the plaintiff’s motorcycle according to plaintiff’s own testimony. This being true, it will be readily seen that it would be a physical impossibility for the car, traveling at that rate of speed, to have been within two hundred or two hundred and thirty or forty feet of the crossing when plaintiff glanced toward the north at the point fifty feet from the crossing. It is also a physical certainty that when the plaintiff reached a point twenty-five feet from the track on which he was struck, the car was at a point on defendant’s track which was plainly visible to a person looking in that direction; that car at that time must have been within one hundred and fifty to two hundred feet of the crossing, becap.se the speed the car was running, according to plaintiff’s, testimony, would bring it within that distance. Plaintiff testified that he had never been able to stop his motorcycle within a distance of ten feet; that he probably could stop it within a distance of twenty feet, but didn’t know. It will be seen that if he was going at the rate of speed which he says he was, it would have taken him some eight or nine seconds to have covered the distance from the point where he looked north to the point where the collision occurred. Tt is a mat
In the case of Walker v. Railroad, 193 Mo. 453, l. c. 481, 92 S. W. 83, it appears that the boys did stop and look and listen and that the train was not then in view, and that they went on without again looking-in the direction from which the train came; and the court held that where they had traveled fifty feet at a speed a little slower than the plaintiff in this case traveled, such conduct on the part of an adult would bar a recovery as a matter of law.
The majority opinion, in my judgment, is in conflict with the following decisions of the Supreme Court: Walker v. Railroad, 193 Mo. 453, 92 S. W. 83; Strotler v. Railroad, 204 Mo. 619, 103 S. W. 1; Dyrcz v. Railway Co., 238 Mo. 33, 141 S. W. 861; Laun v. Railroad, 216 Mo. 563, 116 S. W. 553; Green v. Railway Co., 192 Mo. 131, 90 S. W. 805; Schmidt v. Railroad, 191 Mo. 215, 90 S. W. 136; Sanguinette v. Railroad, 196 Mo. 467, 95 S. W. 386; Mockowik v. Railroad, 196 Mo. 550, 94 S. W. 256; Porter v. Railroad Co., 199 Mo. 82, 97 S. W. 880; Guyer v. Railway Co., 174 Mo. 344, 73 S. W. 584; Huggart v. Railway Co., 134 Mo. 673, 36 S. W. 220; Hayden v. Railway Co., 124 Mo. 566, 28 S. W. 74. These decisions are founded on reason and are in accord with the decisions of other courts, both state and federal, in similar cases.
Entertaining these views, I respectfully dissent from the opinion of my associates, and under the conditions as they appear to me to exist, it becomes my duty to request that this case he certified to the Supreme Court for final determination.