Wallace v. St. Louis Transit Co., 123 Mo. App. 160

Wallace v. St. Louis Transit Co.

123 Mo. App. 160

Mo. Ct. App.

1907

Check Treatment

Lead Opinion

BLAND, P. J.

(after stating the facts). — 1. At the close of all the evidence, defendant asked' an instruction in the nature of a demurrer to the evidenсe. The refusal of the court to grant this request is the first error assigned. It is very evident that plaintiff turned off the east track and drove on the wеst one, without looking or listening for a car on the latter track. His evidence, that he looked back but the salt barrel preventеd him from seeing, is too absurd to be considered, and therefore, he convicted himself of negligence and no just or correct disрosition can be made of the case without keeping this fact clearly in view, and only for the evidence of Bauer, that plаintiff went on the west track when the southbound car was from seventy-five to one hundred feet north of him, and that of Doyle, the other motorman, that the car at that point could have been stopped within a space of fifteen or twenty feet, at the speed *166аt which defendant’s witnesses testified it was running, we would feel no hesitancy in deciding the case should have been taken from the jury. But from this evidence and that of the motorman in charge of the car, that plaintiff was continually under his view and observation before and at the time he turned upon the west track, it reasonably appears the car could have been stopped in time to have avoided the collision, had the motorman in charge thereof exercised ordinary care. In such circumstances, defendant is liable, notwithstanding the prior negligence of plaintiff, and not withstanding the accident would not have happened but for his negligence. The rule of law applicable to this phase of the case is nowhere better expressed than by Judge McFarland, in Watson v. Railway, 133 Mo. 1. c. 250-1, in the following language:

“In order to avoid the effect of the unquestioned negligence of deceased, plaintiff charges that defendant’s employеes failed to observe proper care after- the peril to which he had exposed himself was known to them, or by reasonable care might have ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been known. The rule is thus invoked, which is well settled in this State;, that, though one has negligently placed himself upon a rаilroad track in front of a moving train, those operating it owe him the duty of care to avoid injuring him, and his previous negligence will not bar a recovery if injury results to him from neglect of such duty.”

The court did not' err in refusing to nonsuit plaintiff.

2. For plaintiff the court gave the following instruction :

“2. If the jury believe from the evidence that plaintiff was negligent in driving on the street car tracks of defendant, St. Louis Transit Company, over and along which said company ran its cars, yet if the jury further find from the evidence that the motorman oрerating the car of said defendant which collided with plaintiff’s *167wagon saw said wagon on said railroad tracks in front of said car and in а position of danger from said car in time, by tbe exercise of ordinary care, to have prevented said car from striking said wagоn and failed to exercise ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍such care, thereby permitting said car to collide with said wagon, then the jury cannot find a verdict agаinst plaintiff on the ground or for the reason, that his own negligence directly contributed to his injury.”

It is and always has been the law in this State, that in an action for personal injuries, founded upon negligence, the plaintiff cannot recover if his oavu negligence directly contributed to his injury. [Holwerson v. Railway, 157 Mo. 1. c. 238, 57 S. W. 770; Boyce v. Railway, 168 Mo. 583, 68 S, W. 920; Moore v. Railway, 176 Mo. 528, 75 S. W. 672; Reno v. Railway, 180 Mo. 469, 79 S. W. 464; McLeland v. St. Louis Transit Co., 105 Mo. App. 473, 80 S. W. 30.] The instruction is also in conflictwith one given by the court of its own motion, wherein the court, upon a hypothеtical state of facts, instructed the jury they should find for plaintiff, “unless you shall further believe from the evidence that plaintiff was negligent in such a manner as directly contributed to his said injury.” One or the other of these instructions was bound to override the other and the jury were forcеd to slaughter one of them to arrive at any sort of a verdict. Which of the two instructions they disregarded is a matter of conjecture. They are irreconcilably opposed to each other and for this error the judgment must be reversed. [Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 587, 45 S. W. 41; Baustian v. Young, 152 Mo. 217; Shepherd v. St. Louis Transit Co., 189 Mo. 362, 87 S. W. 1007.]

3. Plaintiff’s instruction on the measure of damages is erroneous in authorizing the jury to' assess damages for loss of time and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍earnings, caused by thе injury, for the reason there is no evidence of the value of plaintiff’s earnings. [Paquin v. Railway; 90 Mo. App. 118.]

4. In the instruction given by the court of its own *168motion, the jury were told that it was the duty of both the motorman and conductor in charge of the car to keep a vigilant watch, etc. In Gebhardt v. St. Louis Transit Co., 97 Mo. App. 373, 71 S. W. 448, we held, that no such duty is required of the conductor. His duties call him to the inside of the car and to the rear platform, where he cannot keep a watch ahead of the car. In Heinzle v. Railway, 182 Mo. 528, 81 S. W. 848, plaintiff’s instruction numbered 4, in effect, told the jury that it was the duty of both the motorman and conductor to keep a vigilant watch, etc. At page 559, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the court said: “Upon another trial plaintiff’s instruction numbered four should be restrictеd to the ‘motorman’ who had control of the movement of the train.”

5. Defendant asked the following instruction, which the court refused to give:

“Even though you may believe the motorman was negligent, yet if you further believe that plaintiff was also negligent, and that such negligence on plaintiff’s part directly contributed to the collision, then plaintiff cannot recover.

“And in this connection the court calls your attention to this distinction between the effect of negligence on the part of the plaintiff and negligence on the part of dеfendant. In order for plaintiff to recover he must prove that the collision was caused directly and solely by the negligence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of defendant’s servants in charge of the car; whereas, in order to defeat plaintiff’s recovery, it is only necessary for defendаnt to prove that plaintiff was himself guilty of negligence which directly contributed to the collision, although it may not have been the solе cause of it.”

The refusal of this instruction is also assigned as error. The language of the instruction is too strong. If the word “solely” had been omitted and the word “proximately” used instead, the instruction would have been *169proper. [Oates v. Railway, 168 Mo. 1. c. 548, 68 S. W. 906.]

For errors noted herein, the judgment is reversed and the cause remanded. Goode and Nortoni, JJ., concur except to second paragraph.

Concurrence Opinion

SEPARATE OPINION BY

GOODE, J.

I do not understand that the court meant to say in the second instruction given for plaintiff that his contributory negligence would cоnstitute no defense. The real meaning of the instruction is that though plaintiff may have been negligent in driving on the tracks, yet such negligence сould not have contributed to the accident if the motorman could have stopped the car before reaching him, aftеr detecting the danger of a collision. However, as the instruction put the matter, perhaps the jury might have misunderstood its meaning. I concur, as does Judge Nortoni, except in the view taken of the meaning of said instruction.