140 Mo. App. 182 | Mo. Ct. App. | 1909
This is an action for damages alleged to have accrued to Joseph Schmidt, now deceased, for personal injuries inflicted upon him by defendant’s street car. Plaintiff recovered and the defendant prosecutes the appeal. After trial and judgment in the circuit court, Joseph Schmidt departed this life and the cause now stands revived in the name of Virginia Schmidt, his executrix. For convenience, we will refer to Joseph Schmidt, now deceased, as the plaintiff.
It appears the plaintiff was seated in a one-horse wagon and had been driving south on the defendant’s southbound track about sixty hundred south Broadway in the city of St. Louis, when the defendant’s southbound car collided with the rear wheel of his wagon
There are two specifications of negligence relied upon in the petition for recovery. The first is the alleged violation of what is known as the vigilant watch ordinance, and the second is an alleged violation of the speed ordinance of the city of St. Louis, which ordinance forbids the operation of street cars at the point in question to exceed fifteen miles per hour. The evidence being insufficient to support the allegation under the vigilant watch ordinance, the court referred the case to the jury on the specification of negligence arising under the speed ordinance only. The evidence on the part of plaintiff tended to prove that he was driving south on the west side of Broadway when his progress was interrupted because of the fact that certain portions of the surface of the street had been removed in making repairs. Thereupon he turned upon defendant’s southbound track and continued his journey southward. The defendant maintains and operates two street car tracks on Broadway near the center of the street. The track farthest west is occupied by south-bound cars, while the track farthest east is occupied by the northbound cars. Plaintiff testified that he looked to the rear and listened for a car at the time of driving upon the track. This was about two hundred and fifty feet north of the point where he was afterwards overtaken and injured. Not seeing or hearing a car at the time mentioned, he continued driving southward for about two hundred and fifty feet. Upon crossing Filmore street, he looked to the rear and listened a second time and neither saw nor heard a car approaching. The time of the year was October, and it was after six o’clock in the evening. It was dusk, or between daylight and darkness. Plaintiff said he could
At the instance of plaintiff, the court gave the following instruction:
“If the jury find from the evidence in this case that on the 18th day of October, 1904, the defendant St. Louis Transit Co. was operating the railway and car mentioned in the evidence for the purpose of transporting persons for hire from one point to another in the city of St. Louis, and if the jury find from the evidence that at such time BroadAvay at the places mentioned in the evidence was an open public street within the city of St. Louis, and if the jury find from the evidence that on said day plaintiff was driving a horse attached to a wagon southward on Broadway, near its intersection with Grundy street in the city of St. Louis, and that whilst doing so the horse and wagon Avere travelling along the south-bound track of said defendant; gnd if the jury find from the evidence that the motorman of said defendant in charge of said car while approaching the said horse and wagon was running said car on the south-bound track at a speed greater than at the rate of fifteen miles per hour, then the court instructs the jury that said motorman was negligent in running said car in excess of fifteen miles per hour, and if the jury finds*189 from the evidence that said car struck the plaintiff’s wagon and threw him off the seat and into the bed of the wagon and injured him, and if the jury further finds from the evidence that the running by said motorman of said car at a speed greater than fifteen miles per hour directly contributed to cause the said car to strike the plaintiff’s wagon, and to throw him off the seat and into the bed of said tvagon, and injure him, and that the plaintiff was in the exercise of ordinary care for his own safety, as specified in other instructions given, then your verdict will be for the plaintiff, against the defendant St. Louis Transit Company.”
It is argued that the court erred in this instruction for the reason it told the jury they should find the issues for the plaintiff if they found that the excessive speed mentioned directly contributed to cause the injury. This assignment of error must be sustained for it appears there was no outside or intervening cause which could have contributed to the injury upon'any theory of the case. There was naught in issue as a contributing cause other than the negligence of the defendant or of plaintiff himself. It appears that instructions employing the word “contributed” in the same, or about the same, connection as here employed, have been approved by the courts of this State in cases much resembling this one. That is, in cases where on the facts in judgment, there appeared to be no outside or independent cause contributing to the injury, the only possible source of negligence being that of the defendant on the one hand and the plaintiff on the other. See Campbell v. St. Louis Transit Co., 121 Mo. App. 416; Riska v. Union Depot Ry., 180 Mo. 168. By reference to the case of Riska v. Uion Depot Ry., supra, it will appear that the objectionable words authorizing a recovery for the plaintiff, if the negligence of defendant contributed to cause the injury, ran through practically all of the plaintiff’s instructions. Those instructions are set out in the opinion and although this feature of them was not discussed
It is very true that one may have his action and a recovery against a defendant for its negligent breach of duty in a case wherein the negligence of the defendant may not be the sole cause of the injury. As for instance, where the negligence of two persons concur and thereby each contributes to the injury of a third. In such circumstances, the injured person may have his action, and if he is -without negligence on his own part, recover against either defendant, even though its negligence was not the sole cause of the injury. A recovery is allowed and sustained in such cases when defendant’s negligence contributes proximately, even though it is not the sole cause of the plaintiff’s hurt. The principle is elucidated in Newcomb v. Railroad, 169 Mo. 409; Straub v. City of St. Louis, 175 Mo. 413; Harrison v. Kansas City Elec. Light Co., 195 Mo. 606. It is likewise true that a plaintiff, being without fault on his part, may have an action and recover against a defendant whose negligence is not the sole cause of injury, if the negligent act complained of concurs with an accidental cause and operates proximately to the injury of another. Although in such cases defendant’s negligence is not the sole cause of the injury, it is liable to respond and answer in damages for its inattention and want of care which, concurring with the accidental cause, proximately entailed the loss or injury upon another party
For error in the instruction referred to, the judgment will be reversed and the cause remanded.