229 S.W. 836 | Mo. Ct. App. | 1921
At a prior term we affirmed the judgment in this cause, but granted a rehearing. Plaintiff sued to recover damages sustained by defendant running her down with his automobile in a public street in the city of Springfield, Missouri. Plaintiff recovered and defendant prosecutes this appeal.
The acts of negligence alleged are: (1) That defendant when approaching plaintiff failed to keep a vigilant watch for persons traveling on the street; (2) that defendant was operating his automobile at a great and dangerous rate of speed; (3) that the automobile was being operated in the nighttime and while it was dark without giving any warning of his approach; (4) that defendant did not have sufficient lights. Also a paragraph based upon the humanitarian rule is embraced within the petition. The answer is a general denial, a plea of contributory negligence; and an ordinance of the city is pleaded as a justification for the character and kind of lights defendant had on his automobile at the time. *662
Plaintiff at the time of her injury, in March, 1916, was a young woman, twenty-two years of age, and a student at the Normal School in Springfield. With her two sisters, Minnie and Gertrude, all dressed in dark colored clothing, she was walking east in the roadway in Monroe Street, between Jefferson on the west and Kimbrough. Plaintiff and her sisters in going from up town about ten o'clock at night walked south on the sidewalk on Jefferson to Monroe and crossed to the south sidewalk, and turned east on the sidewalk on Monroe. The night was dark and stormy, "no moon, no stars," and a wet snow was falling in large flakes, but was melting rapidly. There was a street light at Monroe and Jefferson, and one at Monroe and Holland, some 1200 feet east, Plaintiff and her sisters kept to the sidewalk for about 100 feet, then because it was so dark and snow on the walk, they took the street. In the center of Monroe is a street car track. The street is paved, except for about 9 feet in the center, with concrete. The nine feet in the center is paved with brick, the brick pavement extending about two feet beyond either rail of the track. The distance from the brick pavement to the south curbing is 13.8 feet. Plaintiff and her sisters were walking abreast, close together, plaintiff on the north, Gertrude in the middle and Minnie on the south. They were walking as close to the south curb "as they could." A test was made at the trial as to the distance the three sisters extended when standing abreast as they say they were walking, and the test, it is agreed, showed four feet. Plaintiff then when walking east on Monroe, was at least eight feet from the south side of the brick pavement. Defendant had no head lights burning, but had two dash lights, and his curtains were up. He entered Monroe from the north from Jefferson, and drove east at twelve or fourteen miles an hour. The dash lights lighted no space beyond the side extremities of the fenders, and possibly not to that extent. Defendant gave no warning of his approach, and plaintiff did not hear or see him, and saw no reflection of the approaching light. *663 He drove his car upon her, the right fender striking her in the left side fracturing the third, fourth and fifth ribs about three inches from the spine. Also she had a fracture of the base of the skull, and was unconscious from the time struck till about five o'clock next morning. Plaintiff knows nothing of how far the automobile moved after striking her, but her sisters gave it thus: Gertrude: "We were walking along, all at once something took my sister away and then I screamed. I guess I screamed and then we both started to run after the car. Lala was jerked loose from my left arm, and then I screamed. I ran some piece before I caught up with where my sister was. I could not say how many feet; it was quite a little piece I think. Q. About how far, how many lengths of an automobile as near as you can state? A. I just could not say, I should imagine four or five lengths of an automobile, because we ran after the car and screamed as hard as we could before he ever stopped that car . . . When I got up there to where my sister was, she was just kind of a round ball under the front wheel on the south side of the machine. After we got her in the house her clothes were badly torn, and her face was badly bruised and her ears bleeding." Minnie: "That car just passed by us pretty fast, it just went by us quick; just in a flash. Gertrude screamed, we both screamed and ran after the car. It is hard to give the exact distance that we ran. If the automobile is twelve or fifteen feet long I should judge we ran about seven or eight lengths. When we got up there Lala was fastened down under the car. She was around the front wheel fastened some way. When we carried her in the house her face was skinned and bleeding and her ear was bleeding; she was unconscious and her clothing torn to rags." Defendant carried plaintiff into a house nearby and called a physician, and afterward had her removed to a hospital.
Defendant says that the steering wheel of his machine was on the right hand side; that his dash lights were electric and burning; that the wheels of his machine were entirely on the brick paving; that he selected *664 the brick part of the pavement because it was smoother; that he was running about ten or twelve miles an hour, that his engine was old, and running at that speed made a good deal of noise; that he had a clear vision in front of him while he straddled the rail, that he could see the glisten of the electric light on the rail, that he could see this rail clear up to Holland street; that he had his eyes right ahead, looking all the time, and that there was never anything in his view; that if a person had been in front of his car within the range of his lights he would have seen them; that he could see at least 400 feet ahead. That the first information he had that he had struck some one, he heard the girls scream, and that he stopped immediately and got out, and that plaintiff was "lying on the pavement just at the right of my front wheel, she was on the concrete" and her sisters were there. That plaintiff was entirely free from the machine. That his car was astride the rail when he struck plaintiff, and was still astride the rail when he stopped. As to where he was driving and how quickly he stopped after striking plaintiff defendant is corroborated by a jitney driver who was some thirty-five or forty feet behind at the time of the accident. Speaking of his lights defendant said: "There was hardly any spread to them outside the limits of the car, so that in order for me to see an object they would have to come within the rays of those lights as I proceed to the front. Q. Describe the lamps that you used that night, and that you were burning at the time of the accident? A. They were a regular standard dash light, about four and one-half inches in diameter, the face of them equipped with about ten candle power lamp."
Defendant assigns as error the refusal of his instruction in the nature of a demurrer; the submission of the cause under the humanitarian rule; and the giving of instructions.
Defendant was driving his automobile on a public street where pedestrains had a right to be. [Meenach v. Crawford, 187 S.W. (Mo.) 879; Carradine v. Ford, *665
195 Mo. App. l.c. 700, 187 S.W. 285; Hodges v. Chambers,
The statute recognizes the right of a pedestrian to be on the traveled portion of a street, and does not limit the use to merely crossing it. The conditions prevailing at the time a pedestrian takes the roadway of the street, and the manner in which he conducts himself there would have some bearing on the question of contributory negligence and that is all. Defendants' curtains were up so he could not see to the side. It was dark and snowing and according to his own evidence there was snow on his wind shield; and according to one of his witnesses, Dr. Pipkin whom defendant called to see plaintiff, and who had the ordinary lights on his machine, one could not see more than twenty or thirty feet ahead on account of the snow. Dr. Pipkin testified: "It was a wet snow and would adhere when it struck anything. I couldn't have seen very far, probably twenty or thirty feet." Under these circumstances, and with lights that defendant knew would not disclose an object unless directly in front and possibly not then, he proceeded down a public street with no warning of his approach save that made by the engine and the running of the car upon the pavement. The highest degree of care was enjoined upon him, and since pedestrians have as much right to use the roadway of a street as has a vehicle, a driver of an automobile cannot proceed along a public street under such circumstances on the assumption that pedestrians will keep to the sidewalks except at crossings. That plaintiff was in the street instead of on the sidewalk enters into the question of her negligence, but such will not go to excuse defendant from the degree of care incumbent upon him. [Carradine v. Ford, supra; Howard v. Scarritt Estate,
Plaintiff says that she and her sisters stepped off the walk into the street; that it was snowing and there was snow on the walk, but the snow had melted in the street. That there was a street light on the corner, and that the light was thrown out into the street. That when they stepped in the street she turned around and looked to see if there was any car coming of any kind, and that there was no street car or vehicle coming at that time, and that she did not look back again. She estimated the distance they walked after entering the street and before she was struck at half a block. All three of the sisters say they were walking close to the sidewalk. By applying the figures offered by defendant to the evidence of plaintiff as to where she was walking when struck, she was about five feet north of the south curb or eight feet south of the brick paving in the center. Gertrude said the sidewalk was narrow and was of brick and snow was on it, and that it was better walking, and was lighter in the street. Minnie gave about the same reason for taking the street. For the purpose of the demurrer we must consider the evidence introduced by plaintiff as true, and consider as established every reasonable inference deducible therefrom which the law warrants. [Meenach v. Crawford, supra; William v. Railroad,
In Howard v. Scarritt Estate Co.,
Also in determining the question of plaintiff's negligence regard should be had for the time and place she stepped into the street proper. The circumstances are different in the case at bar and those cases where injury has resulted to a pedestrian stepping into a street already laden with traffic and in a business district. Such is the case of Lowry v. Smith,
In Felver v. Railroad, 216 Mo. l.c. 212, 115 S.W. 980, Judge LAMM presents the question: "Must a citizen who is driving on the people's highway and who, getting on the track of a street railway, laid in said highway, is driving along in that track, must such a man constantly look to the front and to the rear in order to exercise due care in front and behind?" The question is answered in the negative. There the driver was on the track where he must have known that he would be in danger if a street car approached from the rear. In *670 the case here plaintiff was within five feet of the curb, according to her case. The street was not laden with traffic. She looked back when she entered the roadway of the street, and took to the street because of the condition of the sidewalk and the light. We decline to hold her guilty of contributory negligence as a matter of law.
Was it error to submit the humantarian issue? Defendant contends that it was error to submit the cause under the humanitarian doctrine for two reasons. First, because the petition does not allege sufficient facts to bring the cause under that doctrine, and second, because under the facts in evidence there is no place for said doctrine. In view of our conclusion as to the second proposition it is not necessary to consider the petition. Under the facts may the humanitarian doctrine be invoked? In Burde v. Railway,
The night was dark, a heavy, clinging snow was falling, defendant's windshield was partly covered, his lights would not disclose an object in the immediate path of the car, and according to Dr. Pipkin who had the usual lights burning on his car one could not see more than twenty or thirty feet ahead. Defendant was driving on a public street at fourteen miles per hour where pedestrians had a right to be, and where he was bound to know they might be. All these things defendant knew, yet can we say that the humanitarian rule will apply. In Starks v. Lusk et al.,
The humanitarian doctrine proceeds on the theory of not going back of the moment when the injured party becomes in imminent peril. Speaking of the humanitarian rule it is stated in Rowe v. Hammond,
Defendant challenges plaintiff's instructions 1, 2, 3 and 5. Instruction number one is as follows: "The court instructs the jury that if you find and believe from the evidence that Monroe Street between Jefferson Street and Kimbrough Street was, on the 8th day of March, 1916, a public street, much used for travel in the city of Springfield, Missouri, and if you further find from the evidence that about 10:15 o'clock p.m. on the 8th day of March, 1916, the defendant was in charge of and operating the automobile mentioned in the evidence, running the same upon and along said Monroe Street in an easterly direction between said Jefferson and Kimbrough Streets, and if you further find from the evidence that at said time plaintiff was walking in an easterly direction upon and along said Monroe Street between said Jefferson and Kimbrough Streets, and if you further find from the evidence that at said time and place the defendant in charge of and operating said automobile, approached said plaintiff, and that he then and there failed to use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons traveling upon said street, but that he then and there negligently and carelessly operated said automobile by failing to keep a vigilant watch for persons traveling on said street, or *674 that defendant was operating said automobile at a dangerous rate of speed, or carelessly and negligently operated said automobile in the nighttime, and while it was dark, and without giving any warning to plaintiff of his approach, and that plaintiff had no warning of the approach of defendant's automobile, and if you further find from the evidence that by reason of such acts or either of then, said automobile operated by defendant ran into or against plaintiff and injured her, and if you further find from the evidence that plaintiff was exercising ordinary care for her own safety then your verdict must be for the plaintiff."
Defendant says that the statute then in force, section 12, subd. 9, Laws 1911, p. 330, did not require the operator of an automobile to keep a vigilant watch for persons traveling on a street. In Reynolds v. Kinyon, 222 S.W. 476, the Supreme Court held that it is the duty of one driving an automobile to keep watch to ascertain the presence of pedestrians in front of him. The statute at the time of plaintiff's injury required more than ordinary care, it required the highest degree of care. In Theobald v. Transit Co., 191 Mo. l.c. 438, 90 S.W. 354, an instruction was challenged because it contained the language "to keep a constant and vigilant watch ahead." The court there said that this was not a correct definition of the common-law duty of the motorman. The case there was a common-law action of negligence and not based on any statute as the court remarks and the defendant's negligence was measured by the rule at common law, that is its motorman was only required to use ordinary care. But in the case at bar defendant was by statute required to use the highest degree of care that a very careful person would use under like or similar circumstances. Vigilant watch is defined in Theobold v. Transit Co., supra, as an exceedingly careful watch. Measuring defendant's duty by the statute and not by the common law, he should have exercised the highest degree of care that a very careful person would have used in keeping watch. This *675 is more than the ordinary watch or lookout, and is clearly expressed in vigilant watch. It is urged that the instruction assumes that a failure to keep a vigilant watch is negligenceper se. The instruction tells the jury that if defendant negligently and carelessly operated his automobile by failing to keep a vigilant watch, that is if the jury found that defendant failed to keep a vigilant watch then he was guilty of negligence. If defendant was required to keep a vigilant watch, and failed to do so, then we do not know how this question could be a submitted except in language like or similar to that in the instruction. It is next urged that the instruction is bar because of the language: "And with out giving any warning to plaintiff of his approach, and that plaintiff had no warning of the approach of defendant's automobile." Defendant knew or should have known that pedestrians and other travelers might be upon the street and to give him the benefit of the most favorable evidence he knew he could not see all objects in the danger path of his car. Defendant escapes the consequence of the humanitarian rule because of this condition, and we are unwilling to say that this condition created by his prior negligence absolves him from his duty to give some reasonable warning in view of the conditions prevailing at the time that he was driving down the street. A buggy, an automobile or a person on horseback might have been on the street. Defendant could not have seen these any more than he did plaintiff. The statute, section 8, subdivision 2, Laws, 1911, p. 327, provides that a person driving an automobile on approaching a pedestrian on the traveled part of any highway and not upon a sidewalk shall slow down and give a timely signal with his bell or horn or other device for signaling.
Speaking of this statute the Supreme Court in Reynolds v. Kinyon, supra, said: "This recognizes the duty to not only keep watch to ascertain the presence of pedestrians in front of his vehicle, but in case his view is so limited that he is liable tocome upon them without *676 seeing them to warn them by a sound indicating his approach." (italics ours). We find no error in instruction number 1.
Instruction number 2 is on the humanitarian theory, and number 3 also is in connection with that theory, hence there is no occasion for a consideration of the assignment based upon these instructions. Instruction number 5 is as follows: "You are instructed that the plaintiff as a pedestrian had as much right upon the driveway of Monroe Street as did the defendant with his automobile, and that the plaintiff had a right to presume that the driver of the automobile would exercise that degree of care mentioned in instruction No. 1 given by the court, in the operation of said automobile." As an abstract proposition the instruction states the law. The instruction states plaintiff's rights without mentioning her corresponding duties. Calling attention to her rights in the abstract without any mention of her duty as to the care she should observe for her own safety while walking in the street, and at the same time pointing out defendant's duties by reference to instruction number one, might place the defendant at an unfair advantage before the jury.
It is our conclusion that the judgment below should be reversed and the cause remanded, and it is so ordered. Cox, P.J., andFarrington, J., concur.