199 Mo. App. 348 | Mo. Ct. App. | 1918
This is an action to recover damages for personal injuries. At the close of plaintiff’s case the court, at the instance of the defendant, instructed the jury that under the law and the evidence plaintiff could not recover and their verdict must he for the defendant; whereupon plaintiff took an involuntary nonsuit with leave to set same aside. Plaintiff filed his motion to set aside the judgment of nonsuit and
' In the city of St. Louis, Missouri, Mississippi avenue runs north and south, and Hickory street runs east and west. On Mississippi avenue where it intersects Hickory street there are double lines of track belonging to the defendant company which' operates its electric street cars thereon. There is quite a steep grade on Mississippi avenue from Park avenue, which is two blocks west of Hickory street, to Chouteau avenue which is two blocks south of Hickory street. The plaintiff had formerly been employed by the defendant as a conductor of a street car which passed over these streets.
The record discloses that on the 6th day of February, 1914, at about six o’clock in the evening, when by reason of the darkness the street lamps had been lighted, the plaintiff stood on die curb on the southeast corner of Hickory street and Mississippi avenue intending to cross over to the northwest corner of said streets at which corner he intended to hoard a southbound car. Plaintiff while so standing on the curb looked south up. Mississippi avenue and saw a car of the defendant company approaching some distance away, and, in the belief that he had plenty of time to get across the tracks to the opposite corner started from the curb and walked rapidly in “a jog” or “dog-trot” west to the east rail of -the northbound track on the Mississippi avenue and proceeded along said rail. In view of the testimony most favorable to plaintiff the car was about 170 feet away from him when he went upon the track; and Hickory street is said to he sixty feet in width. When plaintiff was within three to five feet of the north line of Hickory street he was struck by the front end of the car and sustained injuries.
Plaintiff did not turn to look at the car after he left the curb. The testimony adduced is to the effect that the motorman did not ring the bell or give any warning prior to the time the car struck the plaintiff
The learned trial judge at the close of plaintiff’s case when defendant offered its demurrer to the evidence, overruled same; but while the first witness adduced by defendant was upon the stand the court became convinced that it had erred in so overruling defendant’s demurrer and thereupon reversed its said ruling and sustained the demurrer. The plaintiff then took a nonsuit with leave to set same aside.
Defendant asserts that the action of the learned trial judge was correct in that plaintiff’s case falls within the rule as laid down in Peterson v. United Rys. Co. (Mo.), 193 S. W. 938; in which our supreme court, speaking through Graves, J., says: “The purpose of sounding a gong or ringing a bell is to give notice of the approaching car. If the party has this notice, without the sounding of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be made the predicate for recovery. Under such circumstances the sounding of a gong or the ringing of a bell could no11 impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person. But be this as it may, it is clear that the submission of this ground of negligence to the jury in this case was error, for which the judgment must be reversed and the cause remanded.” In the Peterson case, however, the plaintiff was sitting in an automobile, the engine of which had ceased to work and the automobile came to a stop on the tracks of the street car company. The plaintiff saw the car approaching at the moment
It is argued with great earnestness that the humanitarian rule is not applicable to plaintiff’s case and in support thereof we are cited fhe following: ‘ ‘ The humanitarian doctrine only applies and authorizes a recovery where the injured person is ignorant or oblivious to the impending danger; but if he knew of the approaching danger, then clearly he would be guilty of such contributory negligence as would prevent a recovery, whatever the conduct of the agents in charge of the train might be.” [Kinlen v. St. Ry. Co., 216 Mo. 145, l. c. 164, 115 S. W. 523, and cases there cited.] Of such rule it has been held in Pope v. Ry. Co., 242 Mo. 232, 146 S. W. 790, that: “The foregoing language must be understood as applying to a ease in which a person is upon the track at a place where he could safely have gotten off and out of danger when conscious of the train’s approach.”
As is so often the case the quoting of a single sentence or paragraph from an opinion does not, when taken by itself and out of the opinion, express either correctly or fully the principal of law which' has been enunciated therein. And so in this case the quotation, though on the surface and when read by itself would seem to be authority supporting the action of the learned trial judge in sustaining the defendant’s demurrer at the close of the plaintiff’s case, yet when one reads the entire case it is obvious that such was not the holding in the said Kinlen case. In the same paragraph and preceding the sentence quoted from the Kinlen case, supra, we find the following: “The humanitarian doctrine does not go so far as to authorize a recovery where the injured party knowingly drives in front of an approaching car, and when he Jmows he will not have time to cross in safety. (Italics
Even under the construction of the Kinlen case as is contended for by the learned counsel for defendant, we hold that it is not authority for the action of the court in sustaining defendant’s demurrer at the close of plaintiff’s case. It is perfectly clear that there is no evidence upon which to predicate a finding that plaintiff knew he did not have time to cross Hickory street in safety. And his evidence makes it appear that he was oblivious to the impending danger, though he knew that the ear was somewhere behind him.
From what we have said above the court erred in sustaining defendant’s demurrer to, the evidence and in overruling the plaintiff’s motion to set aside the nonsuit and grant him a new trial. The said judgment is accordingly reversed and the cause remanded with directions to Sustain the plaintiff’s motion to set aside the nonsuit and grant a new trial.