*1 †59 We carefully considered light the entire record assignments of error made in the motion for and, new trial find- ing no reversible therein, error we appellant conclude that fairly impartially judgment tried should be af- go accordingly. firmed. our White, J., Let order concurs; Walker, J., absent. rel. Rolla Wells, Receiver of Railways United Com ex State George Judges pany, v. F. Louis of St. Court of et Haid al., Appeals. 92. (2d)W. February Two,
Division 1930. *2 Carpenter B. for relator. T. E. and G. Francis respondents. Rosenberger & Grand for Greensfelder, judgment of opinion COOLEY, quash C. Certiorari Sehweig Sarah Appeals of in a the St. Louis cause wherein one Court was The action was defendant. plaintiff and relator herein riding in by plaintiff while injuries personal sustained Louis, city by in the operated brother-in-law automobile her by defendant, plaintiff ear of which automobile was struck street Upon re- a verdict was being injured in the collision. judgment upon plain- from the defendant, in favor of turned judg- reversed the trial court’s Appeals The appealed. Court of tiff alleged error in an solely because cause ment and remanded the by defendant the trial court. Relator bn behalf of judges ruling respondent misconstrued and failed that in insists so rulings court. prior to follow of this necessary pleadings as and facts stated to refer say than to that respondents in their further negligence charged petition pleaded denied the answer part, plain!iff’s respondents held contributory issues, justified is, of both submission defend- evidence that the negligence. per- negligence ant’s opinion is as follows: respondents’ part tinent grounds charges “As error judgment, for a reversal defendant, among in certain of instructions on behalf of reading which was Instruction follows: “ requires ‘The instructs the the law is, ordinary safety; should exercise care for her own ordinarily prudent person such care as an would exercise under the you or Therefore, same similar find and believe circumstances. from all the evidence in case to exercise this failed ordinary safety failing care for her own warn ilie driver knew, automobile which she or she when saw ordinary exercise of care known, could have seen and lie was driving against moving car; said automobile into and street you further find failure to exercise care for safety own injuries, you contributed to cause her should find guilty contributory negligence, she is and she cannot recover here- *3 ’ in, your and verdict be for the must defendant. escape
“We see no the conclusion this that instruction was prejudicial permitted jury erroneous and in that to convict plaintiff contributory negligence merely upon a she that failed driver, knew, to warn when she saw and the exercise care could have seen and known, driving he was against his into moving automobile and car, any a street whereas failure part on her warning to have could not have right as to bar unless was further appear made to warning prevented would have the col- required lision. This the was not to find. Supreme
“The Court, speaking very in of a situation, similar in City, Corn v. Kansas C. & Co., C. St. J. 82, S. W. 78, has tersely said that warning ‘unless the ac avoided cident, it would have give it, been of avail to no and the failure to give it would not have causing contributed to the accident.’ Accord ingly, the in court requested that case held instruction for the defendant therein hypothesis predicated upon omitted efficacy giving warning of a properly refused on account of such omission. language
“The Supreme used Court in the Corn case is so pertinent to, dispositive of, the matter in hand any as render further point discussion of unnecessary. It follows, therefore, that for the error in the instruction under consideration, judg- for defendant ment be stand, not allowed unless it true, suggested by as is counsel for defendant, that, under all the evi- ease, plaintiff dence was not entitled her case sub- jury.” mitted plain- question whether or
Respondents then discuss hold jury, and to the submitted her case tiff was entitled to have ivas she so entitled. prej question in in Relator contends that inis respondents’ stated, udicially the reason erroneous for City C. C. v. Kansas in Corn court with the decisions of this conflict Transit v. St. Louis 228 W. and Hof Ry. Co., & St. J. 1166. S. W. Ry. Co., supra, plain & City C. St. J. In v. Kansas C. Corn in which she. an automobile injured in a collision between tiff was Plaintiff’s interurban cars. defendant’s and one of the charge The operating in the automobile. ivas husband as follows: gave instruction for defendant you from the evi- that, if find instructs the “1. The court approaching the cross- saw the car defendant dence twenty the track situated ing she ivas within fifteen or feet of when attempted the track crossing, and that her husband to cross said proximity front of said ear in such close thereto as to make the danger imminent, of such facts, ivas aware and made stop speed warn the or slacken the of said no driver to effort accident, that such tuould automobile to avoid the so accident, your for havle avoided the verdict should be defend- ’’ ant. give requested refused trial court defendant’s Instruction A 1, except which was the same as defendant’s Instruction italicized of No. 1 wore There was a words omitted. ver- appealed. Ruling upon dict defendant refusing complaint trial court erred Instruction *4 A, this court said: A properly
“Instruction ivas refused because it omitted the words 1, italicized in defendant, to-wit, Instruction ‘and that such would have avoided the accident.’ Unless the warn- ing would have avoided the accident it would have been avail of no contributed, give to it and the it would not to to failure causing (Italics ours.) the accident.”
Does ruling the above amount a to on instruction contributory negligence in such case is erroneous which does not jury specifically that, tell the recovery, jury bar to must find given, if warning, have avoided the accident, but require which does that the failure warn to contributed to injuries complained cause the of? think We not. thoroughly
The rule is many established and has been announced negligence plaintiff times this court that the directly of which injury contributed to cause his will prevent recovery. [Hogan v. Ry. Citizens’ 51 Co., 55, Mo. S. 36, W. 473, and eases cited.] jury submitting tbe issue directs Tbe usual instruction form of guilty- negli plaintiff of if finds tbe and effect substance plaintiff directly gence negligence con specified of and that injury, recover. injury his his he tributed to cause cannot injury. negligence his Plaintiff’s be the sole cause of need not recovery negligence of is bar if his concurs with that sufficient to Ry. Co., supra; [Hogan it. v. Felver to cause Citizens’ defendant W. That v. Central Electric 980.] stating that rule accounts for the usual form of instruction doubtless negligence he directly injury if his cannot contributed to recover. plaintiff Hof was rid- Co., supra,
In v. Louis Hof Transit ing injured by a 'horse and struck the defendant’s was one of pleaded tending street cars. The defendant and introduced evidence prove contributory negligence plaintiff’s part. gave contributory negligence reading an instruction on as follows: charged is plaintiff him-
“It defendant’s answer that guilty negligence self was directly of carelessness and which con- injuries. respect you tributed to his With averment, cause to this are that, notwithstanding instructed the defendant guilty negligence yet plaintiff case, you in this find that guilty directly himself negligence was some act which con- injuries tributed to losses, plaintiff cause his then not entitled you plaintiff to recover. If, therefore, negligently find that caused the horse attempt pass he was front of de- away fendant’s car pre- when said car was so short a distance charge thereof, vent defendant’s motorman in in the exercise ordinary care, with appliances hand, stopping the means and at said car in collision, guilty time to avert has been negligence, and is not even entitled though you negligent should find the defendant have been respect speed give warning.” to the rate of failure to
This court held that said a correct declaration of contributory negligence. the law of It will be observed that instruction in the Hof case told the could not re- cover if his “directly injuries contributed to cause his and losses.” In the respondents brief here on behalf of filed sought distinguish instant case it Hof case in respects, two (a) viz., instruction there under review told the guilty directly contributed to *5 injury cause his he could not whereas the word “directly” is omitted in the case, and, (b) instant that while the instruction given in Hof the case is a declaration of law correct in a case where plaintiff has the control of vehicle or means of locomotion is not applied a passenger in so when a vehicle driven some one else.
764 criticise not say respondents do (a)
Of it is sufficient Their such omission. or because of instruction hold it bad done Had it standpoint. from that does not consider instruction ground on that been condemned might so the v. in White point by this court in view of what was said on that (Q. v.). Upon 593 Rys. 157 S. W. Co., 476, 250 Mo. United apparent alleged it is conflict presents question of point that been the respondents’ opinion would their “directly” instruction. used in the word same had respondents argued (b) brief on behalf of is Relative in a vehicle exercise ordi- requires passenger while the law a permit him safety does not nary prudence his own care regardless impending safety driver absolutely his to entrust require him it does not danger apparent caution, lack of or vigilance driver of the vehicle. as is demanded of the use the same (2d) 939; Ry. (Mo.), 9 S. W. F. Co. Boland Louis, v. St. S. [Smith 141; Peppers 284 W. v. Louis- Ry. (Mo.), S. v. St. Louis S. F. Co. Conceding principle 1104, S. W. F. Mo. S. 757.] question anything has to do at issue. we cannot see that it persons degrees required of may be different of care While there any conditions failure in ease circumstances and under different upon negli- situation is the care incumbent one in that to exercise degrees negligence. gence. in It has been It is not difference recognize negligence. [Young degrees v. law does not said that the W. The difference is in the Railroad, 19.] persons and circumstances situations ai*e facts determining negligence, e., i. whether there was considered requisite in the situation involved. But failure to exercise the care vigilance required degree whatever or of care and amount may be, given situation or under circumstances failure to vigilance neg- or such care and exercise And in ligence as the ease be. cases where the defense of con- uniformly tributory is available we have held that a is, failure plaintiff’s negligence, the care exercise which the imposed upon negli- situation and circumstances him, which injury gence directly contributed to cause the for which sues, he recovery. bars application principle can make no difference of the above guest passenger in this case was a
stated that in operator above, rather than the thereof. As automobile stated only determining in the facts to be considered in difference whether negligent. contributorily the circumstances she If under she right upon the same effect to recover was, must follow operator in a car suit of the if it follow was found that
765 him required of and that exercise the care had failed to he injuries. to failure contributed cause his it did think intended to
Nor do we this court announce City & St. J. in Corn v. Kansas C. C. announce different rule was held to Co., supra. The under consideration instruction there ‘‘ properly the refused because of the omission of words warning that such accident.” Those words would have avoided the given defendant, were included in for as stated another instruction opinion. given in the The with those words included instruction requested by the to have been defendant after court’s refusal must give given its Instruction the are A, since the one one refused identical; otherwise could com- in case of course defendant not if, plain given happily the was not standpoint, its stating worded. In the reason for the refused instruction omitting erroneous for those said: “Unless words the court the warning would have avoided the accident would have been of no contributed, give give avail to it, and the it would not ha-ve failure causing (Italics ours.) the accident.” upon Conversely, finding reasoning, not a would that failure the equiva- did the contribute to cause be accident warning, given, lent to a the prevented would have the accident? We do think not hold court meant to language identical in used instruction and omitted from one employed. thought refused must intended to be ex- pressed was contributing that the failure warn must have been a plaintiff’s injuries cause of should be informed that it find. must so That shown the words we italicized in the quotation above of the language, court’s the reference in the opinion F, to another refused Instruction, which the said was court properly require refused because did plain- not failing tiff, any, look, etc., in “to cause or in- contribute juries received.” So understood in the decision the Corn in case is harmony long rulings with established of this court. Otherwise it be, nothing there is not said in the indicate depart intention to from the contributory settled rule on negligence. The case Holden v. Missouri Railroad analogous
W. the instant parties case the situation of the calling application contributory1 negligence of the for rule. wagon Jones, being Holden was one the team driven crossing by Jones, and while car track wagon injured by plaintiff was struck and car of defendant. Plain- issue. There was a tiff’s verdict for The trial court sustained defendant. motion for new upon ground had erroneous instruc- granting which order defendant, from a new tions trial defend- contributory negligence appealed. ant Defendant’s Instruction was as follows: although
“The plaintiff may court instructs wagon testimony, have been the never- driver of the mentioned *7 implicitly plaintiff, right rely theless was, situated as he had no to upon prudence beside him for the care and of the driver the seat duty, approaching his own driver was safety, but it was his said passing said a careless Thirteenth Street on which cars were at rate speed, rate, attempt speed to to have him check his a safe of to wagon jury and the find under the circumstances said approaching speed, tracks at a rate of and careless plaintiff, speed situated as he made no effort to have said was, diminished, directly and that such the contributed action of your injuries, to sadd collision and his then he cannot and quotation ours.) (Italics must verdict be for defendant.” in above Of this instruction this said: court
“Treating of the instructions in numbered, the order as find we substantially correct; instruction Numbered the error consists in punctuation. (This frankly the failure to due attention is by appellant.) conceded learned counsel This omission have jury application tended to mislead the in the of the facts dec- to this laration.
“Properly understood, as doubtless the trial court intended it 1o interpreted be correctly speed’ punctuated, rate ‘careless designated wagon in the instruction, refers the driver of the might approaching crossing; disregard respect but a in this have tendency jury apply mislead the them incline the terms speed’ rate is only ‘careless to the cars. This criticism to which subject. this instruction is jury intelligently
“To enable the apply the facts to the law as declared such declarations should be clear and un- cause, ambiguous. Upon suggested retrial this is it such employed instruction, terms as will remove all as to doubt speed’ (Italics whom applicable.” the terms ‘careless rate of are ours.) will
It be seen part that the above instruction in the thereof which negligence, tells the contributory effect of respect approved which court, this is similar to the one respondents’ opinion. condemned in opinion respondents
In their ther announce conclusion that prejudicial instruction under review was erroneous and “in that permitted contributory negligence convict merely upon she failed warn the driver , . . . any part her warning Whereas failure on would not right to recovery, have been such as to bar unless it prevented appear was further made to requirement of the ignores express collision.” conclusion Such to convict find failure to exercise jury must “that further injuries.” In thus safety to cause her for her own contributed care prejudicially erroneous for question to be the instruction in opinion misconstrues and conflicts respondents’ stated; the reason case, is in conflict with the decision of this court Corn v. Missouri Rail- supra, v. Louis Transit and Holden Hof Co., supra; opinion of the Court wherefore it follows that road upon quashed. should be Appeals it is based record llenwood, GO., concur. ordered. Davis so foregoing opinion by Cooley, C., adopted PER CURIAM: —The judges concur, except TValher, All court. of the as the of the J., absent. *8 Jerry O’Neil, A.
Louis James P. Hyde, M. Mueninghaus, Mrs. Berkin, Appellants, Louis v. Julia P. James, Schuerfield Joseph His Wife. 24 Frank Haddock Carrie Haddock, (2d) S. W. 1017. February Two,
Division 1930.