Lowry v. Smith
| Decision Date | 13 November 1917 |
| Parties | FREDERICK LOWRY, Respondent v. H. M. SMITH, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Greene County.--Hon. Arch A. Johnson Judge.
Cause reversed and remanded. (with directions.)
W. H Horine and Warren L. White for appellant.
F. T Stockard and Hamilin & Hamlin for respondent.
This is an action for damages for injuries received by the plaintiff about two o'clock in the afternoon on the 29th day of October, 1915, by being struck by appellant's automobile. The petition is not set out in full in the abstract, but the only acts of negligence charged are that defendant came along on South Campbell street in the city of Springfield at a high, reckless and dangerous rate of speed with his large and powerful automobile, and without warning, carelessly and negligently ran said automobile against, upon and over plaintiff. The material facts disclosed in the record are: That the plaintiff was walking north on the east side of South Campbell street, and was about ten or twelve feet north of what is called Traffic alley which approaches South Campbell street from the east. South Campbell street at the place where plaintiff was injured is one of the main business thoroughfares of the city of Springfield, and Traffic alley is also used as a public street and upon it there is considerable traffic. When plaintiff had crossed Traffic alley and was about ten or twelve feet north of where it connects with South Campbell street he decided that he would go across the street to speak to or to see a person on the west side. He testified that he looked up and down South Campbell street and saw no approaching vehicle except a water wagon; that he waited for the water wagon to pass and then stepped off the sidewalk from the east side of South Campbell street and started across the street, and had taken only two or three steps into the street when he was struck. The defendant driving his car on the right hand side or east side of the street was approaching from the south, having come into South Campbell street some seven hundred feet south of where plaintiff was injured. South Campbell street at the place where plaintiff was injured is paved with concrete, and had been dusty, but had been just recently sprinkled which made it slippery, "soapy" as the defendant expressed it. The street is a little down grade to the north where plaintiff was injured. The speed of defendant's automobile was placed all the way from six to thirty miles an hour. Defendant did not sound his horn because he did not have time, after he saw plaintiff's peril, but "hollered" at plaintiff, and veered his car to the west, and it skidded around, and the right hind fender struck plaintiff and knocked him down in the street, and when the car stopped, it was at right angles with the street about ten or twelve feet north of Traffic alley, with the back end and thereof near the curb on the east side of South Campbell street. Other facts material to the issues will be mentioned in the course of this opinion.
The answer was a general denial and a plea of contributory negligence. The issues were submitted to a jury under correct instructions, and a verdict returned for the defendant. Plaintiff in due time filed his motion for a new trial, which motion was by the court sustained, and a new trial granted; and from this action of the trial court in granting plaintiff a new trial defendant has appealed to this court. The record does not disclose upon what theory the learned trial court sustained the motion for a new trial, and this being the situation its action therein should be sustained if it can be upon consideration of the whole record.
Appellant states in his brief and so stated in oral argument, and this is not controverted, that the trial court sustained plaintiff's motion for a new trial solely on the ground that error, in the opinion of the trial court, had been committed in giving instruction number one requested by defendant; that this instruction was in conflict with the rule announced in Bongner v. Ziegenhein, in 165 Mo.App. 328, 147 S.W. 182. With this conclusion of the trial court we do not agree.
Instruction number one given at the request of the defendant is as follows:
1. You are instructed that it is the duty of any person about to step upon or across a street where vehicles may be expected to be passing to look and listen for the approach of such vehicles, and if you believe from the evidence that the plaintiff stepped upon the street without looking for the approach of vehicles, and if you further find that if plaintiff had looked, and could have seen defendant's car approaching in time to avoid being struck, you will find the issues for the defendant, even though you may believe from the evidence that defendant was guilty of negligence in failing to exercise the highest degree of care a highly careful and prudent person would have used under like circumstances at said time and place.
The point is that this instruction required more of the plaintiff than the law justified under the circumstances. Appellant concedes that the rule of stop, look and listen as applied to one approaching a railroad or a street car line does not apply to one crossing a public street, but insists that the facts disclosed in this record amply justified instruction number one. The plaintiff contends that as to whether he should have looked and listened is a question of fact for the jury.
In Bongner v. Ziegenhein, supra, the facts briefly are; Bongner was a passenger on a south bound street car on Grand avenue destined to Magnolia avenue in St. Louis. As the street car halted at the usual stopping place on Grand avenue at its intersection with Magnolia avenue, Bongner stepped off its forward platform and took about three steps towards the pavement when he was run upon and injured by an automobile driven by Ziegenhein. Ziegenhein had been driving south following the street car several blocks before he reached Magnolia avenue, and at the crossing of both Shennandoah avenue and Sidney street, he had stopped his automobile while passengers alighted from the street car, but did not do so at Magnolia avenue. When the street car stopped at the usual stopping place at Grand and Magnolia avenues, Bongner stepped off at the forward end, but just before he stepped off he looked north and south on Grand avenue and observed no conveyance, and stepped off and walked directly west towards the sidewalk without looking again, and while walking to the sidewalk was struck by Ziegenhein's automobile. Ziegenhein gave no warning of his approach by sounding the horn on his automobile. The proposition was strongly urged in the Ziegenhein case that it was the duty of a person under the circumstances obtaining there to look before walking out upon the street after alighting from a street car, and in this connection the court said:
There may be cases where the use of a public street by heavy and swift conveyances presents a condition of constant turmoil so threatening to the safety of pedestrians that a court would be justified in declaring one negligent in attempting to cross without looking and listening.
As to the character of South Campbell street with reference to traffic, plaintiff testified:
Q. Now state to what extent by pedestrians, footmen, Campbell street is used there about the intersection of Campbell street and Traffic alley by persons crossing South Campbell street? A. It is a crossing place. I see other people crossing there. I crossed or tried to. It is used a great deal and there are business buildings all along there, hardware store on the corner, business houses on the other side. It is one of the thick business parts of the city.
Q. Before stepping off the sidewalk to start across South Campbell street, state what you did, if anything, in the way of looking out. A. I looked south and looked north. I didn't see anything but the water wagon on the street except some rigs standing along the curbing, I suppose automobiles and delivery wagons.
Q. You looked up and down the street both ways? A. Yes.
Q. Saw no automobiles? A. None running---I put out my left hand and touched the telephone pole and waited until the water wagon passed, it was going north. It was coming in the same direction Mr. Smith was going when the automobile struck me. It was going north sprinkling the street and I waited for it to get by. And when it got by, I looked (south) up the street.
From the plaintiff's own evidence South Campbell street where he undertook to cross is one of the thick business parts of the city, and we cannot from this record say that it is such a street as to justify plaintiff in undertaking to cross without looking. We do not think that the word "listen" in the instruction complained of is of much importance, and in this case superfluous, but harmless as a reading of the entire instruction clearly reveals that it is predicated upon the proposition that it was plaintiff's duty to look. Plaintiff testified that he did look, thus recognizing that to look was his duty; but as to whether he looked or not was a question for the jury, and the jury determined that question...
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