Meyers v. St. Louis Transit Co., 99 Mo. App. 363

99 Mo. App. 363 | Mo. Ct. App. | 1903

BLAND, P. J.

1. On the theory that plaintiff had joined in the same count a cause of action arising out of contract, with causes of action arising out of tort for common-law negligence, the defendant moved the court to compel the plaintiff to elect upon which cause of action he would proceed to trial. The court denied the motion. This ruling is assigned as error. Defendant’s assumption that a cause of action growing out of contract is alleged in the petition, is based on the notion that the vigilant watch ordinance is not binding on a street railway company until it is accepted by the company ; in other words, that street railway companies in the city of St. Louis are not bound by the ordinance until they have contracted with the city to be governed by it. At one time the Supreme Court held to this view of the ordinance, but this view has been repudiated by later decisions and the ordinance is now held, by the Supreme Court, to be a police regulation binding upon all street railways operating cars in the city limits. We had occasion to review these decisions in the late case of Gebhardt v. St. Louis Transit Company, 71 S. W. 448, and it would serve no useful purpose to repeat that review here. In the same case, following Senn v. Southern R’y Co., 135 Mo. 1. c. 519, we held that the plaintiff might join common-law and statutory negligence in the same count or cause of action. In the light of these authorities the motion to compel plaintiff to elect was properly overruled.

2. Defendant offered a demurrer to the evidence which was denied. This ruling is assigned as error.

The contention of defendant is that plaintiff’s own evidence shows conclusively that he was guilty-of such contributory negligence as precludes his right to recover, and that for this reason the court should have taken the case from the jury. In considering this question we should view the whole evidence in the most favorable aspect it presents in behalf of plaintiff. Baird v. Citizens’ R’y Co., 146 Mo. 265; Buesching v. The St. Louis Gaslight Co., 73 Mo. 219. If this is done, we have before us the facts that defendant’s servant was running its car at an excessive and prohibited rate of speed thereby being guilty of negligence per se; that after seeing, or when he should have seen, the plaintiff’s perilous situation, the motorman continued this unlawful speed without making any effort whatever to stop or check the car, thereby being guilty of both common-law negligence, and a violation of the vigilant watch ordinance.

As to plaintiff’s negligence, the evidence is that when he drove on Washington avenue, the car was from one hundred and fifty to two hundred feet away and that he had plenty of time to cross the track before the car would arrive, which he would have done had not his horse balked; that when the horse balked the wagon was across the track and the car was something like one hundred to one hundred and twenty-five feet distant from him. If this is true, and we must assume it to be true for the purpose of this discussion, the motorman saw, or by the exercise of ordinary diligence could have seen, the plaintiff’s wagon stopped in the track one hundred to one hundred and twenty-five feet in front of him and in time to have checked or stopped the ear and avoided the collision, but he made no effort whatever to slow up or stop the car, hence the collision, which he knew or should have known would occur if he did nothing to avoid it.

. It is no answer or excuse for this gross negligence to say that the motorman had a right to assume that plaintiff would drive on and cross the track before the car would reach him. The motorman made no such claim for himself in his evidence. The wagon was at a standstill and the plaintiff was making an ineffectual effort to urge the horse on; this situation was seen, or could have been seen, by the motorman and it was his bounden duty to take cognizance of the situation as he saw, or should have seen it. If such was not his duty, then a teamster, about to drive over a railroad crossing (seeing no car near enough to prevent him from doing so in safety) who drives on the track and his team balks there or is unable to pull the load over, if he remains with his team urging it on in the hope of getting out •of the way of the ear, is without remedy, if he is struck and injured by the negligence of the motorman.

But it is contended that plaintiff’s horse was known to him to be balky; that he knew he would not move until he got ready; that plaintiff knew urging or whipping him would not avail to make him go forward; that plaintiff had time to get out of the wagon and escape' •danger and for this reason was guilty of such negligence as to bar recovery. Granting that plaintiff knew these facts and that he was negligent in failing to get out of the wagon and thus avoid injury, it does not follow that the motorman owed him no duty and that plaintiff’s negligence was the proximate cause of the injury. The motor-man had the last fair chance of avoiding the injury and the doctrine in this State is well settled that the party who has the last fair opportunity of avoiding the accident is not excused by the negligence of anyone else. Klockenbrink v. St. L. & M. Riv. Co., 81 Mo. App. 1. c. 356-7, and cases cited; McAndrews v. Railway, 83 Mo. App. 233, s. c., on second appeal, 88 Mo. App. 376; Guenther v. Railway Co., 108 Mo. 1. c. 21; Reardon v. Railway, 114 Mo. 1. c. 406; Sinclair v. Railway, 133 Mo. 1. c. 239; Morgan v. Wabash R’y Co., 159 Mo. 1. c. 280.

We conclude that the court did not err in refusing to take tbe ease from the jury.

3. The defendant asked the following instruction:

“If the jury find from the evidence that the plaintiff drove upon the track after having seen the approaching ear, and that after so going upon said track his horse balked, and that thereafter the plaintiff had ample time to avoid the injury to himself by. jumping, leaving or alighting from said wagon, then he can not recover in this case for any injury to himself.”

The instruction as asked was refused by the court, but it was given in the following modified form:

“If the jury find from the evidence that the plaintiff drove upon the track after having seen the approaching car, and that after having gone upon said track his horse balked, and that thereafter the plaintiff had ample time to avoid injury to himself by jumping, leaving or alighting from said wagon, and that he negligently failed and refused to do so, then he can not recover in this action for any injury to himself.”

It was a question for the jury to determine from all the facts and circumstances in evidence whether or not the defendant, by remaining in his wagon, was guilty of negligence which continued down to the injury and directly contributed thereto.

Plaintiff knew that it was the duty of the motorman to keep a vigilant watch for persons and vehicles upon the track; knew that his situation was seen by the motorman; knew that it was the duty of the motorman to stop his car to avoid a collision; knew that he had had time and space in which to stop, if running at a lawful speed, and had a right to assume that he would obsérve the ordinance and the dictates of humanity by stopping his car, which if he had done, there would have been no collision and injury. In such circumstances, it seems to us, it would be monstrous to hold that plaintiff, by remaining in his wagon when he might have gotten out, was guilty of such contributory negligence as to preclude his right of recovery.

We think the instruction as modified presented this phase of the case to the jury more favorably for defendant than the facts warranted and that the one asked was wholly inadmissible.

The instructions given for plaintiff have met the approval of the appellate courts of this State and they, with those given for the defendant, presented all the issues raised by the pleadings and the evidence.

The plaintiff’s injuries were severe and the evidence tends to prove that the injury to his hip is permanent. We do not think that for such injuries one thousand- dollars are excessive damages.

Discovering no reversible error in tbe record, the judgment is affirmed.

Goode and Rey burn, JJconcur.