*1 929 given by III. Instructions one to six were the court on its own given regarding majority and an instruction was also motion, request ver&ct the form of the verdict. At the given, plaintiffs, instruction numbered seven was which subject relations, declared the law on of confidential presumption unduly that such relations influenced testatrix. any asked save instructions,
record does not show that defendants mentioned, which demurrer to evidence above was overruled. any (defendants) brief, appellants point Ill do not their out error instructions, any we unable to these have been discover error J., duty court, in them. in behalf of this said is the that it Graves, appellant’s point errors, upon out such counsel failure to attempt will discover so, do court errors therein. [Yant Charles, 574; Appellate Procedure, v. 219 W. l. c. Elliott S. secs. saying with there Counsel content themselves was no 299-309.] evidence sufficient to justify giving instructions; of said but the reading they properly the instructions discloses the fact that de If fined the a will contest as this. issues defendants instructions, they request should additional have made wished for; there [Morgan misdirection. Mulhall, non-direction not v. 214 463; Co., 591; 198 Mo. 2 Thompson Mo. Fisher v. Transit l. c. l. c. 2396; 1 Brickwood Sacket on Trials, Instructions, sec. sec. 156.] Railroad, 239 l. v. c. we said: Norris eases, many important civil duties rest upon “In the trial of defendant, attorneys among both is to aid the jury giving all they the instructions which court in need to verdict; and at a correct them to arrive enable unsuccessful 'reversal litigant given to a because is not entitled instructions adversary request points do not cover all of his given, have been unless such which instructions should unsuccessful proper requested litigant prepared and points has instructions on the complains.” v. Railroad, which he about Mo. l. [Tethrow c. 86.] by appellants regarding complaint made IY. No is the admission evidence; carefully reading rejection after record, we evenly the trial court convinced that held are the scales fairly presented 0£ issues to jury. All concur. affirmed. judgment v. Appellant, M. Receiver Wells, Rolla Wilson, William United Company Railways (2d) S. of St. Louis. 13 W. 541. February One, 1, 1929. Division *3 appellant. L. L. A. L. Hirsch for Boehmen respondent. Carpenter for G. T. E. Francis and B. *4 damages injuries suffered LINDSAY, for an action for C. This is operated by plaintiff through street the struck across walk northward attempting to plaintiff was
defendant, while of northeast corner the southeast corner to Olive Street the city of Avenue, in the junction Jefferson of Olive Street and the At the close streets. are double tracks on both St. Louis. There peremptory instruction gave the plaintiff’s court of the case the plaintiff’s to set motion defendant, and later overruled offered by plaintiff fol- involuntary appeal this taken aside the nonsuit hav- trial, second this lowed. ing record shows trial. the first taken a nonsuit plaintiff was outstanding question in is -whether the case ques- contributory Another a matter of law. of as presented plaintiff by petition pleaded his
tion is whether the part defendant, as violation of the humanitarian doctrine whether, question evidence, plaintiff made a well also the under For reason that this ease of violation of the humanitarian rule. petition, sufficiency of the also is as to be- raised petition detail, pleads we out al- cause the facts unusual set all the petition containing legations charges negligence. against for defendant states that on, "Plaintiff cause of action to- day wit, December, alighting 9th after from the standing north, front end of a Avenue car bound at Jefferson regular Olive stopping place Street, south side of walked to- Street; ward the southeast and Olive both corner Jefferson Avenue thoroughfares being public city Louis, of said streets of St. Missouri, westerly looked in a direction and saw an eastbound Olive operated by defendant, receiver, standing Street car owned and regular place stopping at on the west eastbound track side Avenue, proceeded Street, rapidly of Jefferson at Olive and he to- standing regular ward a Street car which was westbound Olive place stopping Street, east side Jefferson Avenue on Olive board, passenger if it -was Dehnar as a car he intended hire, legally proper for which he held a transfer obtained on said car; point Jeffei’son Avenue that from the from which he saw the eastbound Olive Street at the west side Jefferson Avenue to curb of east sidewalk Jefferson Avenue feet, about six south rail of said eastbound Olive Street *5 to curb of south sidewalk track of Olive Street is about feet; three-quarters ten he see said and that did not eastbound motion,
street ear and did know it start, did not tliat was again he it saw see the said eastbound Olive Street car stationary Jefferson of regular stopping said on the west side place Street car Avenue until he Olive path was in of said eastbound car. it said escape when was him struck too late for to Street Plaintiff Olive eastbound states that after had seen the he standing aforesaid, he ear Avenue as west of Jefferson side thought ear ample a Delmar place had board he time to cross to said bound of said west, ample motorman and would have had time had the which ordi- obeyed ordinances, eastbound Olive car and the the laws west- nances out, are hereinafter set his attention and he directed aforesaid, by bound Olive Street which to board as he intended past passing boarding receiving end, the front it it at the end of and, if it crossing northwardly were Delmar car; a on traveled the oast on Street, path Olive gotten of said could have out of the up suddenly Olive Street ear rapidly had it not started in excess of the lawful rate and in violation said ordi- nances, giving any warning approach. and without of its ‘‘ plaintiff proceeded walking That Olive Street to cross said on the crossing just aforesaid, east as but he was that able determine Olive westbound track of Street as aforesaid ear, speed, was not a Delmar liis he slackened and within about a struck, second he was part, by without on his said east- bound Olive Street car.
“That neither motorman of said eastbound Olive Street in charge operating who was apparatus, any person, nor other sounded, rang warning or caused to sounded or rung, be a or gave any warning bell, or approach said cognizant danger was not which threatened him.
“That said motorman saw after he left the south side going Olive crossing, northerly Street on said in direction crossing, could, ordinary said or the exercise of care, have seen crossing him Street, approaching track, said Olive said eastbound time to have said car before in- struck plaintiff, stead of said doing, negligently so ear was caused and suffered by said plaintiff, injure motorman to strike and to him. motorman,
“Plaintiff further states that defendant, through said 1093, 1054, violated page Louis, Section of the Revised Code of St. particularly Paragraph thereof, Fourth provides any person charge motorman or other of each ear shall keep vigilant watch all persons foot, vehicles either on moving it, the track toward appearance and on the first danger person car shall be in the shortest time possible; space this, said motorman keeping vigi- watch as lant aforesaid would have seen moving toward
CO have in time to danger being struck and in of tbe track striking plaintiff. stopped said car before motorman, through said defendant, that further states “Plaintiff Louis, St. of Revised Code 1061, page 1099, of the violated Section provides that thereof, which Third particularly Paragraph and 1914, direc- opposite in the any pass another car is about to whenever alight from point permissible passengers to for is at a where it tion not over a rate of ear, proceed at to board a said car shall or gong warning ring a motorman shall per hour, and the three miles greatly proceeded a rate of bell; this, that said car or in did not motorman and that hour, in an excess of three miles operating was although he was ring the car warning bell, or a point a direction at opposite in pass car bound about to another alight and from to board passengers to permissible for where is a car.” injuries. The alleged plaintiff’s of Afterward, followed a statement contributory negli- by plea of general followed a a denial answer was sustained, injuries may have alleging gence “that whatever directly any, his own carelessness and if were caused railway track contributing going a street toward thereto moving street car when dangerous proximity a going in close and ordinary could have care seen heard, saw and or the exercise of moving away to have remained from heard, street car time away railway to have remained track, street thereby proximity alleged street car and dang'erous close to the the collision.” avoided upon counter-charges case arises The essential guilty negligence causing plaintiff’s of made, that the defendant was hand, plaintiff was injury, on the other himself of requires law. a negligence as matter of This consideration of the evidence. west, Street extends east and and Jefferson
Olive Avenue north The evidence shows that the width of both and south. streets from feet, building building sixty curb, line to line is and from curb to p. 1921, thirty-six 10:30 feet. At about m. of December plaintiff alighted from the front end of a northbound Jefferson Ave stopped place, nue which had usual stopping near the south Upon alighting, line Olive Street. he took two or steps three east; looking west, he saw eastbound on the south track Street, on which had near the Olive west line Jefferson discharge taking Avenue, passengers. on of He looked north, Street, and saw a car on the north track on Olive which had discharge near the east line Jefferson Avenue to and take passengers. He intended board the last-mentioned car if it was Delmar car. He walked northeastward to the east curb of Jefferson Avenue, distance where he or stood five six feet, and thence
north Street, Olive feet over south a distance of ten sidewalk upon or more, north, Street. thenee the crosswalk Olive The distance .from the curb Olive Street to the rail south south first ear, track on which was a little more stood the fast; than ten feet. The he walked could not said sign see the westbound car so as to know whether it was a Delmar until he arrived at the south rail of the south track on Street; over, over, when about Olive his foot was the south *7 track, rail of the south he saw that the westbound car was not a Delmar car, stopped, and at that hesitated instant he was struck ear which eastbound in the interval had started rapidly testimony moved somewhat eastward. There was A eastbound car moved faster than a man could walk. witness for testified that at time it it struck was mov ing aat of twelve miles an hour. The same witness testified that he started; saw the eastbound car when plain it also saw the tiff about the he was near the east curb of Jefferson Avenue. curb, This witness stated that started near that stopping and the eastbound car started from its place, at about the (the witness) same time. This testified that he just witness “had gotten up. off eastbound ear and the ear started The wheels very fast, just spinning were around it jerk.” started off with a testimony The gong -was that was no there of a or warn ing on the started, eastbound at the time it or in its movement plaintiff. before it struck the After the started to walk over the Jefferson Avenue curb to the sidewalk and thenee over the crossing, again west, he did not look only but looked toward the westbound car on the north track which he desired to board if it awas Delmar car. testified that thinking He he was of his safe ty car, in respect to the westbound it if should start before he could get it, track; in front over across the north that he passengers saw7 getting car; expected off that that he the motorman of the eastbound gong starting car to sound the car, before and, no being sounded, entirely he felt safe from struck that car. The evi plaintiff got dence shov7s that one or both feet over the south rail track, south struck and was the front end of that car. ITe was thrown toward southeast. The ear wms stopped at a length little more than its after striking plaintiff. There was testimony that question, the car in under the conditions shown to hour, exist, going if an three miles could have been in about hour, feet; going and, four and if one-half twelve miles could thirty in between forty feet. There was testi mony dry, to the that the weather was effect but that the manner slipped car was started that the wheels and that a place screeching w7as lighted, noise made. The was well and was a traffic, place where much there was there heavy traffic on but night. noise, he heard a could Plaintiff testified that rattling far as question, he “As tell what it was. In answer to said: couldn’t dis rumbling wheels, noise, I heard a wheels or tinguish it, what it was.” westbound car walked toward the
He further testified as he time, because when he saw the reason he didn’t look the second safe, was, perfectly felt the eastbound car it he where warning gong when that the eastbound there no he still felt safe with was familiar this cross- approaching. was not every night ing, having, nearly for about two said, as he transferred years, a Delmar the Olive Jefferson Avenue point Street north from the where track. The evidence shows that stood, point to the was when saw the eastbound of collision, approximately twenty-five feet, walked and that the sixty point approximately feet, ear from the at which it stood moved place to the of collision. tending
Without discussion it can be said that there was part to show plaintiff of defendant. whether contributory negligence
must be held to have been law, as a consideration of matter is to be determined *8 existing out, conditions as hereinbefore set with some further circum- plaintiff appearing alleged stances in his the record. The and evi- operated which dence showed that defendant all the ears tracks mentioned; plaintiff passenger have that the as a hire Jefferson Avenue car had a transfer ticket for use on a Delmar-Olive car, take; looking westbound the car which he to desired toward car, sign slant,” westbound because on that car was “on a he could not determine that it was not a Delmar car until he reached the south track on Olive Street. passengers, The transfer of from one running direction, car to another a different at such intersections and heavy traffic, in is an occurrence so common as to be taken into con- only respect sideration, not in in causing to the act of defendant speed crossing eastbound car shown, to move over at the without sounding gong, determining in but whether shown, guilty negligence the situation was as a matter of law. At the time started toward car the westbound there was a intersection, on three of the four corners of the several discharging taking passengers. Passengers all of them
alighting at about the same plaintiff, and the himself, desiring purpose to take another and for required tracks, reason, cross the with assume that the ear could which would required be pass opposite direction, in an the car toward which moving, proceed such passengers way, were would not on its without any circumstances, warning speed, and at a excessive under the violative of the ordinances. westbound car The toward which moving, discharging passengers from its front end.
938 shows that The evidence near the east line Avenue. of Jefferson car, and alighted eastbonnd passengers twelve fourteen from the car. number Jefferson northbound Avenue question to be listening, real tends to show that and the contributory as a determined whether he was law, moving matter northward toward because, again not look he desired to take Delmar lie did if it was a NegLi- track. rail stepping the west before over gence question the acts con- alone, of law unless does become a men stituting reasonable would it are of character that all such a judged by to be Human conduct is concur so. pronouncing them human standards. knowledge or right had a assume absence existing, the east
notice to under the conditions contrary, warning suddenly run without bound would not be started dangerous circumstances, and could at a under the way of the ordinance would not be run excess same assume the car warning. any rate without [Unterlachner Railways, 288 199; Lackey v. 317 Mo. v. Mo. l. c. Wells, United 141; Harrington l. Dunham, v. 273 Mo. c. 424.] railway
Generally speaking,
about
a street
who is
to cross
one
approach
cars,
track
do
should both look and listen for
we
rule, or enforced
not think
can
an inflexible
with
this
held to be
be
railway.
ordinary
strictness,
steam
In
as in the case of
things,
listen,
failure to look as well as to
nature of
whether
con-
negligence,
depend
peculiar
stitutes
must
circumstances of
each case.
considering
given
this
attention to the
we
eases
Wells,
Coggin
cited counsel for defendant: 520; Epstein Wells, W. Hoodenpyle Wells, v. 291 S. v. S. W. 845; App. Railroad, 257; v. 179 Mo. v. Osborn Gubernick United Railways, 33; Railroad, 570; 217 S. Kelsay Mockowik v. v. W. 374; Huggart Railroad, v. Railroad, 129 Mo. c. 134 Mo. l. c. l. 679: *9 548; Boring Railway, 541, v. 194 and we have considered Mo. also 330; 185 Hornstein v. Railroad, cases such as Giardina v. Mo. United 142; Heigold 308 Railways, 440; Railways, 195 v. Mo. Mo. United Wells, 193, 195; (Mo. App.) Steigleder 297 W. Hawkins v. S. v. Lonsdale, 490; Railways, 487, 253 S. v. W. McDonald United 211 (Mo. App. 149; Bosley 260 S. Wells, App.) v. W. l. c. Mo. 127.] peculiar practicable. in each of cases is not Reference to the facts these Only a few will be referred to. Goggin Wells, supra, plaintiff
In v. was struck a the westbound attempting go a crossing car north over from the while to southwest crossing. standing the had seen this westbound car corner of She started; crossing northeast of the before she she the corner did not charge struck, was of violation There no was again, look the three-mile-speed ordinance, statement was and there no that there discharging passengers, another ear for westbound also, plaintiff’s direction. pass opposite ear to in an There bj attention was not attracted another or vehicle. It was said nothing plaintiff. was to mislead or deceive the there Hoodenpyle Wells, supra, In v. there was a condition in some re- Goggin spects similar to that ease. The testified that no car, he looked and saw but it was held the conclusion was inevitable that did not when look, see, or, he either to look was to that he looked attempted approaching car, and saw the but to cross the track ahead page car. was 522: “This is said, plain- It not a where case approaching car, misjudged speed, tiff saw the but its or where he discharging passengers, saw it and believed there was suf- it, ficient for him to in front of or where cross turned a corner ’’ and came into view after had looked for the he last time. Wells, supra,
In Epstein driving v. was a small truck daylight. in broad saw street car which He struck him, approach sixty ing, away, it was feet when and the was fifteen or speed track; changed twenty feet from the he truck, of his attempted appears to cross front of the street car. It there were passengers curb, opinion but the some 847, shows, page say upon did not relied the presumption stop passengers. that the would for these “He said he did not traveling, note how fast street was further that he did not speed, know the ordinance he did not even intimate he re running upon the ear the lawful rate.” lied In the ease provisions at bar it can be assumed that knew the of the speed gong as to ordinances under the circum existing. opinion stances Reference is made Epstein’s Railroad, v. case to Mockowik ruling on that point in the Moebowik case was overruled case, Unterlaehner supra. Appeals Epstein’s It held the Court was case, that even if the were allowed benefit presumption stop passengers, rely the car would could entirely not situation as an excuse for such his failure to avoid entering the danger zone under circumstances as were found exist; it was further held under the circumstances he could rely entirely upon an obedience to custom or ordinance requirements, failing the extent of use of his own make senses for his own pro tection. Railways v. Gubernick United Company, supra, plaintiff was driving near, a horse. He saw the car which struck him when it approaching, and his rig own was near the track. In that case of the ear within the limit fixed ordinance. charge There by sounding of failure to warn ringing bell, unavailing and this was held plaintiff, because, he said *10 although oncoming car, speed he could the
lie saw the not tell its at gave him case, seeing car, approaching, of all time. In that the the gong which if the he would have had the had been sounded. notice car, bar, plaintiff it, only In the when saw was case at the about sixty away discharge taking still for the feet and was and seeing by plaintiff passengers, on of and the of it under cir- the existing not, which him, cumstances was to all of the notice would given by gong. sounding of the the In Railroad, injured through Giardina v. supra, was struck a street ear. In that case an eastbound ear on the receiving passengers. south The plaintiff track was for ran key to the rear of hand a his brother end to who was on platform. having so, north, Plaintiff done turned back and stepped upon and north track was struck a westbound car. printed In that case there was rules of company duty making it motorman gong of the to sound the within one of crossing, hundred feet sound once approaching or twice on crossing, gong near fifty and meeting to sound feet before passing another while it. The that case testified it, operation cars, that he knowing knew the custom the paused car, listened, and, behind the eastbound hearing no coming gong, stepped concluded was west and no car out and was contributory struck. negligence, It was held that he was barring recovery. Railways, supra, alighted v. United Hornstein attempt passed behind it an to cross the other track. moved, alighted failed wait the car from which
He until so longer along as no to obstruct his view the other track. There was also, company ease, m evidence the rule as to the passing discharging a car when passengers, or directing crossings when the car at or near to be up. slowed in that case was the An element considered fact that the car which hour, speed going struck was seven miles an dangerous held to be not an unlawful and rate speed fixing in the ordinance slower rate. absence referred to the We have heretofore case Unterlachner v. Wells. thirty- 181. Tn that case the was on the sidewalk, forty away from the track of five feet the street or which he fifty approaching and which was then about saw one hundred and away. not know the at which it moving. He did feet He corner of the. street intersection knew the southwest which the car regular stopping place was a for approaching street cars, passenger stop. had waived that a ran feet, thirty forty getting and was intent on so across the track running boarding the car. that did not observe running brought car.. him His and movement of
941 said, page 197: track, was It avoid struck. too late to contrary) knowledge (without to the right assume “He did have the it per miles hour. Had running exceed fifteen that the ear was not to done), plain- running (even stopping, as it should without safety.” Holding perfect in that thar tiff would case have crossed stop, right was said plaintiff that the car would it had the to assume contributory negligence as assumption him of “disrobes thirty-five forty question There, plain- ran feet.” he assumption allowed contributory negligence hung upon the tiff’s plaintiff moving seen, assumption from what had that a ear he question stop. also, plaintiff would Here what would operator conditions, assume what what the he saw of the of the car must the two other ears have seen of might discharging passengers, and from which assume except proceed, speed, that the eastbound car would not at slow by gong. its movement made known Heigold Railways Company, We refer v. United also to companion 142. In that case and a were on the west the two tracks. The side of north-and-south desired to take car, northbound which would come east track. His com Carey, panion, one desired to take a southbound car to on the come they within west track. Wrhen were a few feet of the west track and approaching west, it from the a southbound car approaching, was seen seventy-five hundred and one to two hundred feet north of them. ear, Carey coming, referred to as his and started toward regular stopping place ear, for that stop. waived for it were There passengers waiting to take it. plaintiff, knowing things, these started across the tracks to ap take a westbound ear which he saw proaching. straight did walk He not east track, across the west but walked southeast on to the west track and was struck southbound stopped had not stopping place, but had speed. increased its There was no reference to the failure of the look, stepping before on the southbound track, to see if plantiff stopped. charged violation of the Vigilant- Watch Ordinance. It was held, under foregoing, the facts that the to show tended the motorman keeping was vigilant not watch ordinance, demanded and that was not contributory negligence as a matter law; right, that he had a stop the car would up passengers to assume to take waiting aat regular right stopping place, and he had no to think that the would increased, be and without the increase speed, he would have place safety. reached expense At the repetition, it is ob served the instant case the eastbound car stopped discharging passengers. cars, other Two one on the northeast and one southeast corner were discharging passengers. The east bound proceeding, pass had to the westbound car while the
latter discharging passengers, toward the last proceeding. named car We hold that under the condi- existing right tions had the to assume that the eastbound car would and proceed, warning, start without and at a excess of hour, passed three miles an and that his failure look as crossing, sidewalk over the palpable negligence was not such as to leave no room for opinion, ques- reasonable difference and that the tion of contributory negligence his question jury. was a for the question
There remains petition charges whether the a viola tion of the humanitarian rule. That de is raised fendant, question, also the further anyhow, under the evi *12 dence go was not entitled jury to the under the humani tarian rule. The constitutive elements of a case under humani tarian rule are stated in Banks v. Morris, Mo. l. c. fol (1) lows: Plaintiff position (2) peril; defendant (if duty notice thereof it was the of defendant to have been on the lookout, sufficies) ; (3) constructive notice defendant after re ceiving present such notice had the ability, hand, with the means impending have averted the injury injury without to himself or others; (4) ordinary he failed impend to exercise care to avert such ing injury; (5) by injured.” reason thereof It is our petition conclusion that require- does not meet charge ments of a negligence under the humanitarian rule. The plaintiff charges primary negligence failing sound give any warning; other Vigilant-Watch violation of Ordinance; violation of the three-mile ordinance, charges and otherwise no primary than more failing stop the street ear and striking to avoid plaintiff. petition allege does not position peril or in peril; imminent and in our view, the allegations various must be held to have been made with the purpose charging defendant with the several primary kinds of negligence, and attempt not in an to state a case under the humani- tarian rule. holding consideration of our upon question plaintiff’s contributory negligence, scope and effect of plaintiff’s petition, lay we aside the plaintiff’s whether made jury a case -for the under the humanitarian rule. For the mentioned, judgment reasons above is reversed and the Ellison, cause remanded. Seddon and CC., concur. PER foregoing opinion CURIAM: The by LiNdsay, C., adopted opinion as-the judges court. All concur.