Phelan v. Granite Bituminous Paving Co., 115 Mo. App. 423

115 Mo. App. 423 | Mo. Ct. App. | 1905

BLAND, P. J.

(after, stating the facts). — 1. At the close of all the evidence the defendant moved the court to instruct that under the law and the evidence plaintiff was not entitled to recover. The refusal to grant this instruction is assigned as error. The instruction was in the nature of a demurrer to the evidence and the plaintiff should have the most favorable view of his case that the evidence warrants and every reasonable inference therefrom. [Pope v. Railway, 99 Mo. 400; 12 S. W. 891; Larson v. Railway, 110 Mo. 234; 19 S. W. 416; City of St. Louis v. Railway, 114 Mo. 13; 21 S. W. 202; Young v. Webb City, 150 Mo. 333, 51 S. W. 709; Bank v. Simpson, 152 Mo. 638, 54 S. W. 506; Roe v. Adams, 80 Mo. App. 198.] By giving the plaintiff the most favorable view of his case, it appears that the engine in charge of the steam roller saw the plaintiff’s wagon as it approached from the east, before the horse became frightened, and had the wagon in view until it was overturned; that he could have stopped the noise of the whistle and the puffing of the engine in a moment, but instead of doing this continued to sound the whistle and permit the puffing of the steam, after he saw the horse was frightened, had become unmanageable and was running away, and that the plaintiff was in a perilous position. This being' true, the engineer was negligent in failing to cease blowing the whistle and in failing to stop the engine after he saw the plaintiff- was in a position of peril. [Oates v. Railway, 168 Mo. 535, 68 S. W. 906; Brown v. Railway, 89 Mo. App. l. c. 196, and cases cited.] We think the demurrer to the evidence was properly overruled.

2. The defendant assigns as error the giving .of the following instruction:

“1. The court instructs you that, if you find from the evidence, that plaintiff was driving a one-horse, wagon at the place mentioned in the evidence, and that the agent of the defendant in charge of a certain steam roller, mentioned in the evidence, negligently ran and operated the said steam roller with unusual puffing and whistling noises, that the horse of the plaintiff, as a result of the puffing and whistling of said steam street roller, became unmanageable and placed plaintiff in a position of peril, and said horse ran away and caused the injuries to plaintiff complained of, and you further find from the evidence that the agent of the defendant, in charge of and operating said steam roller, saw the plaintiff’s horse was becoming frightened at said steam street roller and noises, and was becoming unmanageable, and that the plaintiff was being placed in a position of peril, in time to have stopped or checked the running of said steam street roller and stopped or checked the pnfflng and noises of said steam street roller, and prevented the plaintiff’s horse from becoming unmanageable and running away and the injuries to plaintiff complained of, by the exercise of reasonable exertion on his part, and you further find that he negligently failed to perform this duty, then defendant, was guilty of negligence, and, if you find that plaintiff’s injuries were caused by the said negligence of defendant, then your verdict should be for the plaintiff, unless you further find from the evidence that there was negligence on plaintiff’s part directly contributing to the injuries sustained by him.”

One of the objections to the instruction is that it uses the word “unusual” in such connection with the puffing and whistling as to indicate to the jury that the puffing was unusual, while there is no testimony that it was so. This criticism is just, for there is not a syllable of evidence that the puffing was unusual or that the noise therefrom was greater than at any other time when the engine was in operation. But we do not see how the defendant could have .been prejudiced by this slip in the instruction. According to the defendant’s evidence, there was no whistle on the engine and it was never necessary to use a whistle on this character of machine. Therefore, the whistling that took place, if it did take place, was not only unusual but wholly unnecessary, and if the horse took fright from the unnecessary noise made by the whistle combined with the usual noise made by the puffing, neither the court nor the jury were required to separate the two noises and ascertain whether the fright of the horse was caused by the usual or unusual noise or by both. Whether the noise of the whistle alone, or it combined with the noise of the escaping steam, caused the fright of the horse, his fright is attributable to the negligence of the engineer. The instruction placed a greater burden on the plaintiff than he was required to bear; for this the defendant is in no position to complain. The following further criticisms are made of the instruction:

“3. The instruction sets forth a number of distinct acts and omissions, and then concludes with the statement ‘if you further find that he (the engineer) negligently failed to perform this duty,’ thus leaving the jury to draw its own inference as to which particular the words ‘this duty’ apply to.

“4. The use of the phrase ‘by the exercise of reasonable exertion on his part’ is erroneous; it should have said ‘by the exercise of reasonable care on his part.’

“5. The instruction ignores the other causes which might very well have been the primary cause of the accident, viz.: the loose left line, and the pile of gravel and the screenings cart.”

The instruction proceeds upon the theory that if the engineer saw the horse was frightened by the noise of the engine and that plaintiff was in a position of peril, it was the engineer’s duty to stop the noise. The instruction correctly stated the humanitarian or last fair chance doctrine, which we think is applicable to the facts of the case as shown by the evidence. [Gates v. Railway, supra.] The phrase, “by the exercise of reasonable exertion on his part,” from the context of the instruction, means by the exercise of reasonable care, and could not have been understood differently by the jury. All the evidence sIioavs that the Avagon ran upon the cart and the gravel pile; the plaintiff’s that the horse became frightened and in his fright ran over the cart and gravel pile. The defendant’s evidence tends to show that the horse was not frightened until the Avagon struck the gravel cart and that it was the collision Avith the cart that frightened the horse, and that the collision was caused by the careless driving of the plaintiff. This evidence raised an issue of fact, that is, whether the horse was frightened and caused to run aAvay by the noise made by the steam roller or Avhether he was frightened by the Avagon colliding with the sprinkling cart and the gravel pile. If the fright Avas caused by the latter, the defendant is not liable; therefore, the issue was a material one. It was entirely ignored by tbe instruction. This was error. [Clark v. Hammerle, 27 Mo. 55; Sawyer et al. v. Railroad, 37 Mo. 240; State v. McKinzie, 102 Mo. 620, 15 S. W. 149; Lafayette County Bank v. Metcalf, 29 Mo. App. 384; Griffith v. Railway, 45 Mo. App. 574; Schaaf v. Fries, 77 Mo. App. 346; Galbreath v. Carnes, 91 Mo. App. 512.] The defendant asked an instruction (No. 2 refused) which, if it had been given, might have supplied the omission and prevented a reversal of the judgment. This particular issue was not submitted to the jury, for which error the judgment must be reversed.

Other errors are assigned but as the judgment must be reversed and the cause remanded for a retrial on account of the error in the first instruction given for plaintiff, we deem it unnecessary to take up the other assignments of error as these alleged errors may not occur on a retrial of the cause.

The judgment is reversed and the cause remanded.

All concur.