161 Mo. App. 545 | Mo. Ct. App. | 1912
The plaintiff’s suit is to recover damages he alleges he sustained by reason of the negligence of defendant’s employees. The charge of negligence is as follows: “Plaintiff states that on or about the 26th day of February, 1909, at about eight o’clock p. m. of said date, he was engaged as a hack driver in driving a hack along said Eighteenth street in a westerly direction; that while he was so driving along said Eighteenth street, and while in the exercise of ordinary care on his part, one of defendant’s cars in charge of defendant’s agents, servants and employees, negligently and' carelessly ran into and struck the hack upon which plaintiff was riding as aforesaid, throwing plaintiff to the ground with great forcé and violence, and injuring plaintiff as hereinafter set out.
“Plaintiff states that defendant, its agents, .servants and employees in charge of said car were guilty of negligence in this, that they saw, or by the exercise of ordinary care could have seen plaintiff driving along said street and on the track of defendant, in time to have stopped said car before striking the hack upon which plaintiff was riding as aforesaid, and in time to have prevented the injury to plaintiff; that defendant, its agents, servants and employees in charge of said car, negligently failed to ring the bell and
The answer was a general denial. The evidence shows that plaintiff while driving a hack west on Eighteenth street the hack was struck from behind by one of defendant’s cars being operated on said street and plaintiff was thrown out and severely injured. As to the extent of his injuries there is no dispute.
Plaintiff’s evidence tended to show that he came upon Eighteenth street from Forest avenue, and when he had proceeded about'thirty or forty feet going west he drove onto the defendant’s track; that at that time he looked back, but saw no car coming from the east. Plaintiff stated that Eighteenth street is a narrow street and that in order for drivers of teams meeting on the street to pass one of them would have to pull upon thé defendant’s tracks; that at the time he went upon defendant’s tracks he did not do so at that time, in order to let another team pass, but because he saw one coming and that it was his intention to remain on the track until he passed it. It was while so driving that, his vehicle was struck by defendant’s car coming up from behind. It was night, but there was sufficient light for plaintiff to have seen a man a block away. Plis statement was that he was struck about two hundred feet from the place where he came upon Eighteenth street.
A witness by the name of Hoover was standing on the corner of Forest avenue and Eighteenth street when plaintiff entered the latter street and turned west on the south side of defendant’s tracks; that he did not see the collision because the car was between him and the hack, but that he heard the crash; that
Plaintiff does not claim that he looked back for a coming car except when he first came upon the street. The car went fifty or sixty feet after the collision before it stopped. The evidence of other witnesses tended to show that the bell was rung and that the car was not going very fast. It was shown that the night was bright and that the plaintiff could be seen for the distance of several blocks.
The defendant’s motorman and conductor were absent in California and their testimony was not introduced. The testimony of several persons on the car was introduced. ' Some of them testified that the car was coasting down hill and that the motorman was using the brakes to get it under control; that it was slowing down before he made the effort to stop it; that the bell was ringing all the time from the time it left the crossing at Forest avenue. The blinds of the doors and windows were down which prevented them, except one, from seeing the hack struck. The latter, stated that .the plaintiff came upon the track a few feet ahead of the car. The burden of the testimony of the defendant’s witnesses is that the motorman made a strenuous effort to stop the car just before the collision occurred. The judgment was for plaintiff from which defendant appealed.
Taking all the evidence, including that of plaintiff himself, we are of the opinion that he was guilty of negligence under the particular circumstances of the case in going upon defendant’s tracks. He should at least have waited until he met some team before he got upon the defendant’s tracks and he failed, to look at the proper time to see if any car was coming from
It is contended by appellant that the respondent was not entitled to recover on his petition. The argument is that as the petition alleges that plaintiff was in the exercise of ordinary care, he is precluded from recovering on the humanitarian theory. That: “It is impossible to reconcile any theory of law upon which recovery can be predicated in which plaintiff is in the exercise of ordinary care and at the same time permit a recovery under the humanitarian or last chance doctrine.” We are unable to see the impossibility of reconciling the two allegations of the petition. They are not inconsistent. The appellant’s argument leaves out of consideration the fact that if plaintiff was in the exercise of due care at the time he was on defendant’s track and in peril, the defendant would be liable for striking and injuring him, if by the exercise of proper care it could have avoided doing so
The term “humanitarian theory” has given rise to many hair-splitting theories, when as a matter of^ fact, it is a statement of nothing more nor less than that of approximate cause, which must exist in every case in order to render the defendant liable for negligence. And it is held that the humanitarian doctrine does not necessarily presuppose that the injured person was negligent. [Shipley v. Railway, 144 Mo. App. 7; Grout v. Railway, 125 Mo. App. 552.]
The street being well lighted and the plaintiff being in plain sight, we are justified in assuming that the motorman saw the plaintiff on the track in time to have avoided striking him by the exercise of reasonable diligence. And making due allowance for the fact that the motorman was ringing his bell to give plaintiff notice of the approach of the car, and that he had the right to expect that plaintiff would heed it and get off the track, yet if he saw or might have seen that he did not heed the warning, it became his duty to have checked his ear in time to have prevented' it from reaching plaintiff on the vehicle. The circumstances tended to show that defendant’s motorman could have, by the exercise of the necessary vigilance, avoided the collision.
The plaintiff’s case was put to the jury on this theory of the case. The defendant’s criticism of it is that it authorizes a recovery although the jury may find that plaintiff negligently placed himself in dangerous proximity to the car. This objection has already been answered in discussing the merits or demerits of the petition.
