Rodgers v. St. Louis Transit Co.

117 Mo. App. 678 | Mo. Ct. App. | 1906

BLAND, P. J.,

(after stating the facts.)

1. There are two assignments of error relied on for a reversal of the judgment. The first is that the court erred in refusing defendant’s instruction in the nature of á demurrer to the evidence, offered at the close of plaintiff’s case. In support of this contention, defendant relies upon the case of Giardina v. Railroad, 185 Mo. 380, 84 S. W. 928. In the Giardina case, the plaintiff stepped from behind a car on a parallel track and was immediately struck by a car traveling in an opposite direction from that traveled by the car from behind which he had stepped. The car by which Giardina was struck was running at a high rate of speed, and the motorman in charge was guilty of negligence in failing to sound the gong as he approached the crossing. The trial court sustained a demurrer to the plaintiff’s evidence, and the Supreme Court affirmed this ruling on the ground that the plaintiff was guilty of negligence that directly contributed to his injury. This ruling supports the minority opinion of this court in Hornstein v. United Railways Co., 97 Mo. App. 271, 70 S. W. 1105, where (at page 278) are collected the cases in this State, holding that a plaintiff cannot recover when his own evidence shows that he was guilty of negligence that directly contributed to his injury, notwithstanding the defendant was also guilty of negligence. Counsel for appellant cites Green v. Railroad, — Mo. —, 90 S. W. 805, and Deane v. Transit Company, — Mo. —, 91 S. W. 505, as having approved and followed the Giardina case. The opinions in these two cases are not at hand, hut .we have no doubt that the ruling is well established in this State, that where the plaintiff’s own evidence conclusively shows he was guilty of negligence that directly contributed to his injury, a verdict against him should be directed by the court, although the evidence shows that the defendant was also guilty of negligence; and we think that in this case, plaintiff’s own evidence shows that he was guilty of negligence in failing to remain stationary on Nineteenth street until the west-bound car had proceeded far enough to he out of his line of vision so that he could see whether •or not a car was coming from the west on the other track, and too near to allow him to cross the street in safety. But there is another principle of the law almost universally acknowledged, Avliich we think takes the plaintiff’s case out of the rule, that a plaintiff should he nonsuited when his own evidence shows that his negligence concurred with that of the defendant to produce the injury. This principle is nowhere better stated than by Shearman & Redfield on Negligence. It is as follows:

“It is now perfectly well settled that the plaintiff, may recover damages for an injury caused by the defendant’s negligence, notwithstanding the plaintiff’s own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant’s omission, after becoming aware of the plaintiff’s danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed; although the same rule, in substance, but inaccurately stated, has been made the subject of strenuous controversy. But, furthermore, the plaintiff should recover, notwithstanding his own negligence exposed him to the risk of injury, if the injury of which he complains was more immediately caused by the omission of the defendant, after having such notice of the plaintiff’s danger as would put a prudent man upon his guard, to use ordinary care for the purpose of avoiding such injury. " It is not necessary that the defendant Should actually know of the danger to which the plaintiff is exposed. It is enough if, having sufficient notice to put a prudent man on the alert, he does not take such precautions as a prudent man would take under similar notice. This rule is almost universally accepted. The most reckless presistence, on the part of one exposed to danger, will not justify another in consciously refraining from using care to avoid injury to him. This qualification of the doctrine of contributory negilence, often called The rule in Davis v. Mann;’ from the leading case on this subject has been much criticised. But those criticisms turn mainly upon the language used by Naron Parke in that case, which is, perhaps, too broad, and which has not been here adopted although it has been literally repeated in the highest court of England, as well as in that of the United States. It is possible, too, that the application of the principle in Davis v. Mann was erroneous; but that does not affect the validity of the principle which lay at the foundation of that case. That principle is that the party who has the last opportunity of avoiding accident, is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.” [1 Shearman & Redfield on Negligence (5 Ed.), sec. 99.]

This statement of the principle is approvingly quoted by this court in Klockenbrink v. Railroad, 81 Mo. App. 1. c. 356; and the opinion of this court was approved and the principle declared to be the settled law of the Supreme Court in Klockenbrink v. Railroad, 172 Mo. 678, 72 S. W. 900. Expressions are to be found in some recent opinions of the Supreme Court' which seem to qualify or restrict the application of this principle, but there is no case to be found in.our Supreme Court reports that authoritatively overturns or in any wise weakens this salutary principle of the., law. The plaintiff’s evidence tends to show that had tfie motorman discharged the duty he was under, both at common law and under the ordinance offered in evidence, to keep a watch ahead and on the first appearance of danger use reasonable care to check or stop his car to avoid colliding with plaintiff’s wagon, the accident would not have happened. We think, on this evidence, plaintiff was entitled to have his case submitted to the jury.

2. The second assignment is that the court erred in giving the following instruction for plaintiff:

“1. The court instructs the jury that if they believe •from the evidence that the plaintiff was driving on Nineteenth street of the city of St. Louis, on the twenty-first day of June, 1903, and that while he was crossing the tracks of the .defendant, the St. Louis Transit Company, at the intersection of Nineteenth street with Olive street of the said city, plaintiff’s vehicle was struck by a car operated by defendant, the St. Louis Transit Company, on account of the failure of the motorman of the said defendant to use ordinary care in stopping the said car with the means and appliances at hand and with safety to the passengers upon the first appearance of danger to the said plaintiff, whereby the said plaintiff was injured, then they should find in favor of the plaintiff and against the said defendant, unless they believe that the plaintiff himself was guilty of negligence at the said time and place.”

The instruction ignores the defense of contributory negligence pleaded in the answer, but we think this omission was cured by the following instructions given1 for defendant:

“10. Although the jury may find from the evidence that defendant’s, the St. Louis Transit Company’s, agents in charge of the car did fail to sound any bell or gong on said car, and did not stop or slow up said car and avert the collision, and did not keep a watch for persons on or approaching the track, and did not stop the car in the shortest time and space possible after the first appearance of danger, still, if you find from the evidence that plaintiff saw the approaching car, or, by looking, could have seen said car in time to have kept the horse and wagon off the track and avoid the collision, and failed to see or heed what he saw, then the plaintiff cannot recover and your verdict must be for the said defendant.

“11. If the jury find from the evidence that the plaintiff’s alleged injuries were caused .by the mutual and concurring negligence of plaintiff and the defendant’s, the St. Louis Transit Company’s, motorman in charge of said car, and that the negligence of either, without the concurrence of the negligence of the other, would not have caused the injury, then your verdict must be for the said defendant.”

“12. If the jury believe from the evidence that plaintiff was driving a wagon south on Nineteenth street, and that Nineteenth street was crossed by the railroad tracks of the defendant, St. Louis Transit Company, laid in Olive street, then it was the duty of plaintiff, in approaching said street railway tracks to look in the direction from which the car was approaching and also to listen for the purpose of ascertaining whether a car was approaching or not, and if he found by such means that a car was approaching so near that there was danger of a collision, then it was the plaintiff’s duty to stop before going upon the track and let the car pass without delay or hindrance; and if the jury find from the evidence that the plaintiff failed to look or listen- or if he looked or listened, that he failed to heed what he saw or heard, and to stop his horse and keep off the track, and that said failure directly contributed to plaintiff’s alleged injuries, then the plaintiff cannot recover and your verdict must be for the defendant.’

With these instructions before them, the jury could not have lost sight of the defense of concurring or contributory negligence. Plaintiff’s instruction correctly declares the principle of what is commonly called the “last fair chance doctrine” and was appropriate under the evidence in the case. It is insisted, however, that as there is no evidence in the record that the-car conld have been stopped sooner than it was, or as to the distance in which it could have been stopped, it was improper to submit to the jury to find whether1 or not the car could have been stopped, in time to have avoided the injury. The two witnesses, on the front platform with the motorman, testified that they saw the horse on the track one-half block (one hundred and fifty feet) from the crossing. If they saw the horse, the motorman also saw him or would have seen him, if he had looked, as it was his duty to do. These two witnesses also testified that the motorman did not begin to apply the brakes until the car had run from seventy-five to one hundred feet from the point where they first saw the horse on the track; and all the evidence shows that the car did not run its full length after it struck the wagon. On this evidence, the inference is irresistible that had the motorman applied the brakes when he first saw, or by the exercise of ordinary care would have seen the horse on the track, the car would have been stopped in ample time to have avoided the collision.

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

All concur.