206 Mo. 445 | Mo. | 1907
This is an appeal from a judgment of the circuit court of the city of St. Louis in favor of defendant. The judgment was rendered at the February term, 1904, and after an ineffectual motion for a new trial the plaintiff appealed to this court. The action is for damages for personal injuries to plaintiff, a teamster, by the alleged negligence of defendant’s motorman in charge of one of its street cars, in running said car into the wagon which plaintiff was driving, on the night of December 10, 1902, at a point on South Broadway, a short distance north of Bowen street. The petition in substance alleges the plaintiff was a teamster and on the night alleged was driving a lumber wagon, drawn by two horses, upon and along South Broadway east of the eastern track of defendant’s railroad thereon and had reached a point north of Bowen street which intersects Broadway; that no part of his wagon was within defendant’s track; that at said date the street was very muddy and in consequence the tracks were invisible at places; that the street was narrow, only about fourteen feet from the track to the sidewalk, and lined with the defendant’s poles; that owing to the defective street he was compelled to drive near defendant’s east rail; that he was exercising great care and caution in endeavoring to find a safe portion of said street; that while so driving a car of defendant in charge of its servants and employees was run in a careless and reckless manner and propelled at a great and unlawful speed, to-wit, twenty-five or thirty miles an hour, and without the sounding of any gong or bell or giving plaintiff any other signal, was run into plaintiff’s wagon, whereby it was overturned and plaintiff thrown violently to the ground, and. his body entangled in the doubletree and front wheel, and his leg broken and cut, whereby he was put to great expense for medicines and medical treatment and suffered permanent and incurable in
The answer was a general denial and a plea of contributory negligence in that plaintiff was driving near or on defendant’s tracks in front of the approaching car and so close as to render it impossible for the motorman to stop in time to avoid the collision, and in driving upon defendant’s track without looking or listening for the approach of cars or having listened or looked in failing to heed when by the exercise of reasonable care he could have avoided the collision.
Reply denied all the new matter.
For the plaintiff the evidence tended to establish the following facts: Plaintiff was a teamster, driving a, lumber wagon, and was returning home in the evening of December 10, 1902. He had a skeleton lumber wagon, drawn by two horses, and between eight and nine o’clock at night arrived at a point a little north of Bowen street, on South Broadway. He was going north on the latter street slowly, on the east side; with his left or west wheels alongside of or partly within the' east track of defendant’s railway, which has a double track there. He had been driving along South Broadway for an hour or more before he was struck at the point last mentioned. The street along this part of his road was rough with holes and rocks in places and he was picking out the best part of the highway. He testified he was listening and looked back several times to see if any car was coming, but could not tell how often he did this, but “it was every now and then.” The night was dark and cloudy and the air wet, with the temperature about freezing. He was seated on his wagon and had reached a point some forty feet north of Bowen street when his wagon was struck by a car of the defendant coming up- from the rear. The wagon was upset, the tongue forced through the fence to a yard .on the east side of the street, one of the horses pushed into the gate there and the
Bowenschulte testified that “a few seconds after seeing Zander, the plaintiff, I noticed the car coming north, going at a pretty good rate of speed, and noticed the car cross the crossing and just that quick it hit the wagon. I saw Zander as he was crossing Bowen street and the next thing I saw after that was the car about a half block south of Bowen and the wagon a little north of Bowen. The car was going very fast. When I heard the car strike the wagon Zander was a little north of the north crossing of Bowen street.”
Parent testified: “When I first saw the car it was about fifty feet south of the south crossing of Bowen street. I had not heard or seen the car before that. At no time did I hear any gong, bell or signal
Tony Schumacher testified he was walking down Broadway there at the time going south and noticed Zander, hut did not hear any signal or see any light on the car. The night was dark and foggy. All of these witnesses testified that the car ran pretty near up to Grundy street, the next cross street north, after the collision. Schumacher also testified that the car was going very fast, about thirty miles an hour. George "Ware also testified that he did not hear any hell or signal.
Charles J. Gooding, a witness for the defendant, testified he was a passenger on the car and that just » after the ear passed over the crossing at Bowen street, the motorman struck three or four sharp alarms on his gong and knowing they were over the crossing, he thought there was something wrong, and in a second after the motorman struck the gong he set his brake very hard, so much so that he took hold of the seat in front of him and in a minute or two a crash came; at that instant he looked up at the window and caught a\ glimpse of the wagon and pole apparently turning over; he thought the pole was going through the window and he dodged down. The night was very dark. After striking the wagon the car ran pretty near to
George Seib was the conductor in charge and testified “we were going along there that night about 8:40; just about the time we crossed Bowen street, I heard the motorman reverse his car. I was about the middle of the car and looked out ahead through the window and saw the lumber wagon and that the driver was in the act of getting out of the track. The wagon was cat-a-cornered, and then we went right up> against him and the next thing I saw he was lying outside of the track. The wagon was turned around upon the sidewalk, and the front pole was sticking through the fence. The motorman gave one or two' taps of the bell, just as he saw it, I suppose, and reversed his car, but by this time he was upi against it. It all happened, just about this quick (snapping his fingers). When I first felt the reverse I guess the car must have been about fifty feet or so from the wagon. We are permitted to run fifteen miles an hour in that part of the city, and just prior to the accident I roughly guess the car was going twelve, thirteen or fourteen miles an hour. The night was dark and moist. After the collision part of the fender was found protruding from the center pole, sticking out behind the wagon, which was overturned and broken, and Zander’s leg caught between the spokes of the wheel.”
' Other testimony showed that the left hind hub and wheel of the wagon was broken by the collision. The plaintiff himself testified that his left wheels were not in the track but east of it. On the part of the defendant, it further appeared on a cross-examination of the plaintiff, that when the plaintiff was several blocks south of Bowen street that night, the motorman in charge of the car just ahead of the one that struck him, cursed and abused him without any provocation; that he did not provoke the motorman by obstructing
On the part of the plaintiff the court instructed the jury, ‘ ‘ That if they believe from the evidence that on the 10th day of December, 1902, plaintiff was driving a team and wagon, in a northerly direction on South Broadway, along and so near the eastern track of the defendant’s double street railway line there located on, along and over a part of the street immediately adjoining the eastern rail of said track, and over which the bodies of defendant’s cars operated on said line in passing necessarily protruded, and that while so driving his wagon was struck by a car of the defendant company, operated in due course of its business by its servants, running upon said eastern track and traveling in the same direction as pláintiff; and if you further believe from the evidence that the servants of defendant company in charge of said car operated it at a great rate of speed and failed to sound any gong or give any signal, or in any other manner warn plaintiff of the approach of said car, in time to enable plaintiff to clear the track and avoid the injury, and that such failure on the part of said servants was under all the circumstances negligence on their part, and directly contributed to, and was the approximate cause of the collision, and that plaintiff was in
The court further instructed the jury, “That the plaintiff, as well as defendant, had a right to use that part of the street occupied by the tracks of the defendant company, but it was the duty of the plaintiff to exercise ordinary care upon his part in the use of his faculties in driving along the track of the defendant company, and that it was his duty to vigilantly watch for the sound of any gong or bell or any sign, signal or warning of the approach of a car from his rear, and this duty was a continuing one, not to be negligently abandoned or ignored by plaintiff at any time after driving upon or along said track, and if the jury find that such signal or warning- of such approach was given in time for plaintiff, by the exercise of ordinary care, to have avoided the collision, and that plaintiff did not exercise such care in keeping watch for such sound, signal or warning or that after he did he failed to heed such warning, and by failure to exercise ordinary care in watching, or failure to watch or to heed what he saw or heard, that he thereby directly contributed to the collision, and if the servants of the defendant were unable to stop said car from striking said wagon with the means and appliances at hand for that purpose when they discovered plaintiff along the side of the track or ahead of them, they would find for the defendant, but if they find that no such sound or gong or bell or signal or other warning of an approaching car was given in time to enable plaintiff by ordinary care to avoid the collision, or that such whrning was given, but that, despite any negligence on the part of the plaintiff, if any, the servants of the defendant company saw, or by the exercise of ordinary care could and should have seen plaintiff near the tracks ahead in time to have avoided collision by the exercise of ordinary care on their part in the use of
The court also gave the ordinary instruction defining ordinary care, and also instructed the jury that although they should find that the plaintiff' was guilty of negligence, if the servants of the defendant company operating said car saw plaintiff with his team and wagon in his position along, or near the track, or by the exercise of ordinary care on their part could or should have seen him in said position and that the same was dangerous, in time to have averted the collision with the appliances at hand for that purpose, by the exercise of ordinary care on their part, but failed to do so, then they must find for the plaintiff.
The court also instructed as to- the elements of damage.
For the defendant the court instructed the jury that' the acts of negligence charged against the defendant were, first, that the defendant’s car was propelled at a great and unlawful rate of speed, to-wit, at. twenty-five or thirty miles an hour. And second, that defendant’s employees in charge of its car had failed to ring the bell or give other signal of the approach of defendant’s car, and the burden was upon the plaintiff throughout the case of establishing, ,by the preponderance or greater weight of the evidence, one or more of said acts of negligence, and that such negligence was the direct, proximate and efficient cause of plaintiff’s injuries, and, unless he had done so, he was not entitled to recover. And secondly, that it was the duty of those operating street cars to exercise ordinary care to avoid injuring people, but it was also the duty of persons upon the street to exercise ordinary care to avoid injury from the cars and to look and listen for the approach of cars before placing themselves in dangerous proximity to the track upon which said cars
The 10th instruction for the defendant was in these words: “If the jury find from the evidence that the car could have been seen or heard by the plaintiff in time to have avoided the collision, had he looked or listened, then the fact that the plaintiff says he did look and listen and did not see or hear the car, in the absence of proof of some obstacle to prevent his seeing or hearing, has no probative force to prove that he looked and listened and did not see or hear the car, and such evidence does not entitle the plaintiff to recover.”
And the 11th instruction is as follows: “The court instructs the jury that while the plaintiff was a witness in his own behalf, the jury are the sole judges
Under the instructions the jury found the verdict in favor of the defendant. Within four days thereafter, the plaintiff filed his motion for a new trial, in which he assails the instructions of the court for the defendant as erroneous, contradictory and inconsistent and Mghly prejudicial to the plaintiff and not based on the evidence, and because they are a comment on the evidence and are based upon facts assumed of which there was no testimony, and because they singled out one witness and commented on the probative force of his testimony.
I. The 11th instruction given for the defendant was erroneous in that it singled out the plaintiff as a witness and usurped the province of the jury in weighing his evidence. This instruction was disapproved in Montgomery v. Railroad, 181 Mo. 477; Conner v. Railroad, 181 Mo. l. c. 415 and 417; and Ephland v. Railroad, 137 Mo. l. c. 198. Such instructions in civil cases are a direct comment upon the weight of the plaintiff’s testimony, and are not to be tolerated. This particular instruction received full consideration in Conner v. Railroad, 181 Mo. 415, et seq., aúd it is not necessary to discuss it further.
II. But if the foregoing instruction was erroneous far more so was the instruction numbered 10 for the defendant, wMch told the jury that the fact that plaintiff said that he did look and listen and did not see or hear the car, in the absence of some obstacle to prevent his seeing or hearing, had no probative force to prove that he did look and listen and did not see or hear .the car, and such evidence did
III. Instruction numbered 91 directed the jury that the simple fact that if the plaintiff at the time of the accident was driving his wagon across or out of defendant’s track for the purpose of permitting the car to pass, then, under the pleadings and the evidence and the law, the verdict must be for defendant. Compressed into its smallest compass this instruction required the jury to find for the defendant if the plain
IV. The 8th instruction, as will be seen by reference to it, told the jury that while the burden was upon the defendant to establish the contributory negligence of plaintiff, this did not relieve the plaintiff of the burden of proving that Ms injuries were solely caused by the negligence of the defendant, and that if the jury found from the evidence that the plaintiff’s alleged injuries were caused by the mutual and concurring negligence of plaintiff and defendant’s motorman, and that the negligence of neither without the concurring negligence of the other would have caused the injury, then their verdict must be for the defendant. The defendant may be liable even if the accident was not caused by its sole negligence. While it may be conceded that the defendant has a superior right to its tracks, it must be. remembered its tracks are laid in a public highway where every citizen has a right to travel and it often occurs that these tracks are necessarily occupied by other vehicles and what would be ordinary care in the country on a fenced track, wMch the public do not frequent, would be gross negligence in a populous city. Its paramount right must be exercised in a reasonably prudent manner. [Moore v. Railroad, 126 Mo. l. c. 274.] And, as was said in Klockenbrink v. Railroad, 172 Mo. l. c. 687: “And while defendant argues that it was negligence for the plaintiff at that hour of the night to drive with his wheels Mside of the rails, it is equally open for the plaintiff to' argue that it was reckless conduct on the part of the motorman to run his car at the rate of at least fifteen miles an hour on a public
Y. In instruction four for the defendant, the court told the jury that if the plaintiff drove near or remained dangerously near said tracks, his duty to look and listen was a continuing one and could not be abandoned at any time so1 long as he remained along or dangerously near said track. And plaintiff assigns this instruction as error. The doctrine invoked by the defendant in this case, and which met the approval of the circuit court, is applicable to crossing cases where a pedestrian or a driver of a vehicle attempts to cross a highway over which a railroad runs, but, as said by Judge Marshall in Schafstette v. Railroad, 175 Mo. l. c. 151, the law does not apply to or fit the conditions presented by this case. The plaintiff did not attempt to cross the track in such close proximity as to be struck by the car before he could cross, nor immediately in front of the train. According to the defendant’s own evidence, the plaintiff had been traveling on this street and on these tracks at least partially for several blocks, and if on account of the darkness of the night, the motorman was unable to see the wagon of the plaintiff far enough ahead of- him to give plaintiff a timely warning of the ear’s approach, a very slight degree of care required that he should have sounded Ms gong, if not continuously, at least often enough to apprise travelers who might be upon the track, of the coming of the car, nor was the plaintiff precluded from a recovery because he did not look and listen all the time. As said by this court in Petersen v. Railroad, 199 Mo. l. c. 340, “We know of no inexorable rule of
VI. Instruction number two given for defendant is challenged because it tells the jury that it is the duty of persons on the street to look and listen for the approach of cars before placing themselves in dangerous proximity to tracks over which cars are run. As already said, this is not a crossing case nor is it a case where the plaintiff attempted to cross the track in such close proximity to a moving train or car as to' be struck thereby before he could cross, nor is it a case where he stepped or drove in front of a train, but on the contrary the whole evidence showed that he had been driving along these tracks “for a long time before the collision. This instruction, however proper it might be in’ a case in which the facts would justify it, ought not have been given. This case is an example of the mistake which the trial courts sometimes indulge in giv
In our opinion the instructions above examined on the part of the defendant were misleading and the verdict of the jury must be ascribed to them. Accordingly, the judgment must be reversed and the cause remanded for a new trial in accordance with the views herein expressed.