Uetz v. Skinner
| Decision Date | 16 March 1923 |
| Parties | ROSA E. UETZ, Appellant, v. GRACE E. SKINNER, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Greene County.--Hon. Guy D. Kirby Judge.
AFFIRMED.
Judgment affirmed.
Frank B. Williams and Talma S. Heffernan for appellant.
(1) In a civil action, it is the duty of the court, when requested to define technical terms used in the instructions, and the refusal so to do constitutes reversible error. Johnson v Mo. Pac., 96 Mo. 340, 349; Thompson v. Ins. Co., 231 S.W. 1049 and 1052, and cases cited; Barry v. Wilson, 64 Mo. 164; Clark v. Kitchin, 52 Mo. 316; McMillen v. Elder, 160 Mo.App. 407; Cramer v. Nelson, 128 Mo.App. 393, 399. The words "preponderance of the evidence" have a peculiar meaning in the law, and it is believed their use, unaccompanied by further explanation, does not convey to the ordinary mind a definite impression. Berger v. Storage Co., 136 Mo.App. 43; Miller v. Boot & Shae Co., 26 Mo.App. 63. (2) The weight and credibility of the testimony of the witnesses testifying as experts are to be determined by the same rules that apply to other witnesses, and such testimony should be considered by the jury in connection with all the other evidence. Dunn v. Dunnaker, 87 Mo. 597; 1 Blashfield on Instructions, sec. 373, pp. 810, 811; Thompson v. Ish, 99 Mo. 160, 179; Hampton v. Massey, 53 Mo.App. 501, 504; Buckalew v. Railroad, 107 Mo.App. 575, 588; Spaulding v. Edina, 122 Mo.App. 65, 69. (3) One may lawfully use that part of a paved street between the street car track and the street curbing as a place in which to alight from a street car, even though the place of alighting is not at a regular stopping place for the discharge of passengers or at a street intersection. The deceased, when he alighted from the street car onto the street paving, was in the exercise of a lawful right in a lawful manner. A pedestrian has a right to cross a street in the middle of the block. Meenach v. Crawford, 187 S.W. 879, 882; Young v. Bacon, 183 S.W. 1081. (4) Inevitable accidents are such as come from a force superior to all human agency, either in their production or resistance. L. C. & L. Ry. Co. v. Hedges, 72 Ky. 645, 647; Dreyer v. People, 58 N.E. 620, 623; Russell v. Fagan, 8 A. 258, 261; Bouvier's Law Dictionary (Rawls' Revision), Vol. 1, page 1025. (5) If instructions contradict each other, or are framed on inconsistent, contradictory, or conflicting theories, they are held to be confusing and the error in the one is not cured by the correctness of the other. Bowen v. Epperson, 136 Mo.App. 571; Dunn v. Dunnaker, 87 Mo. 597. (6) Negligence means the doing of something which an ordinarily prudent person would not have done under the same or similar circumstances; or the omission to do something which a person of ordinary prudence would have done under the same or similar circumstances. Quirk v. St. Louis United Elevator Company, 126 Mo. 291. (7) The quantum of care required of an automobile driver, in the face of peril and under the last chance doctrine, is such care as a man of ordinary prudence and presence of mind would have used under the same circumstances. He is not required to act wisely or discretly but only with such care and judgment as would be expected of a man of ordinary prudence in a like situation. Barry on Automobiles, sec. 114, p. 171, citing Brown v. Atlantic Coast Line, 88 S.E. 332. Even as against a wrongdoer or a trespasser, ordinary care is a primary duty. Starks v. Lusk, 194 Mo.App. 250. The law is satisfied if individuals conduct themselves with the degree of care usually exercised by a person of ordinary prudence. Shamp v. Lambert, 142 Mo.App. 573, citing Mitchell v. Railroad, 132 Mo.App. 143, 153. The test laid down by all the authorities is not: Did the defendant do all he could have done under the circumstances? but: Did the defendant do all that an ordinarily prudent person would have done under the circumstances? (8) The driver on an automobile must take such steps for the safety of pedestrians "as prudence might suggest." McFern v. Gardner, 121 Mo.App. 10, 11; Babbitt on Automobiles, sec. 205, p. 233; Sapp v. Hunter, 115 S.W. 467. (9) Error in an instruction is presumably prejudicial in the absence of a showing that it is harmless. Cottrill v. Krum, 100 Mo. 397; Steinwender v. Creath, 44 Mo.App. 356; Camp v. Wabash R. R., 94 Mo.App. 272. (10) An automobile is, in law, regarded as a highly dangerous piece of machinery. Meenach v. Crawford, 187 S.W. 879, 883, and cases cited. Every person who operates a motor vehicle upon the public highway must be regarded as exercising a privilege and not an unrestricted right. It being a privilege granted by the Legislature, a person enjoying such privilege must take it subject to all proper restrictions. Pickel v. Pickel, 243 Mo. 641. It was the duty of defendant, Grace B. Skinner, as driver of the automobile, to give warning to a pedestrian apparently unconscious of the approach of her automobile. Guenther v. Railroad, 95 Mo. 299. The driver of an automobile owes to pedestrians the duty of exercising skill and care in the management of his vehicle. Davids on Automobiles, sec. 152, p. 138. (11) Whether or not the defendant, Grace B. Skinner, ought, from the visible facts, to have realized the danger to Uetz when she saw him in the act of alighting from the street car and to have taken such steps as a reasonably prudent person would have taken to avoid the injury, is a jury question. Foster v. West, 194 Mo.App. 94; Starks v. Lusk, 194 Mo.App. 250. (12) An instruction which ignores the duty of the driver of an automobile to prevent the injury so soon as he saw deceased in the street in front of his automobile and in a position of peril, and limits his duty to avoid the injury to the time after deceased had placed himself in danger, is misleading and erroneous. Bunyon v. Citizens' Railway Company, 127 Mo. 12, 13.
L. L. Collins, Len Walker and E. P. Mann for respondent.
(1) We know of but one exception to the rule that where an injury is the product of the joint concurring acts of negligence of both plaintiff and defendant, the plaintiff cannot recover and that is an exception made on the ground of public policy and in the interest of humanity to prevent and restrain as far as may be, a willful, reckless or wanton disregard of human life or limb or property, under any circumstances, and that is when the injury was produced by the concurrent negligent act of both plaintiff and defendant, yet if the defendant, before the injury discovered or by the exercise of reasonable care might have discovered the perilous situation in which plaintiff was placed by the concurring negligence of both parties, and neglected to use the means at his command to prevent the injury, then his plea of plaintiff's contributory negligence shall not avail him. This exception proceeds not upon the theory that the defendant has been guilty of another and independent act of negligence which is the sole cause of the injury and must be charged as a separate and independent cause of action, but upon the ground that the negligence he was then in the very act of perpetrating was characterized by such recklessness, wilfulness or wantonness as that he shall not be heard to say the plaintiff was also guilty of contributory negligence. Judge BRACE in Kelley v. Railroad, 101 Mo. 745; Judge VALLIANT in Morgan v. Railroad, 159 Mo. 275; Judge GANTT, in Blockenbrink v. Railroad, 172 Mo. 689. (2) A showing of a mere possibility that the accident might have been avoided in spite of plaintiff's contributory negligence is not sufficient to invoke the humanitarian doctrine. If the utmost that can be said of plaintiff's evidence is that it tends to show defendant's servant in charge of the car was guilty of some negligence in failing to stop the car after he discovered plaintiff's dangerous proximity to the track, while it shows plaintiff's own negligence conspicuously in not looking for the approaching car, the plaintiff is not entitled to have submitted to the jury the question of whether defendant's servant was guilty of a reckless and wanton disregard of human life in failing to stop the car in time to have avoided the accident after discovering defendant's dangerous proximity thereto, for in such case it cannot be said to a certainty that he was negligent in presuming that plaintiff would exercise prudence and ordinary care to look for the approaching car. Marcovitz v. Railroad, 186 Mo. 350; Deane v. Railroad, 192 Mo. 586-588; Giardena v. Railroad, 185 Mo. 330; Moore v. Railroad, 176 Mo. 544. (3) Granting defendant's negligence in outlook, signals, slacking or stopping, yet where the injured party who is sui juris, negligently moves from a place of safety to a place of danger so close before an engine or car that by ordinary care his injury cannot be averted, then there is no room for the play of the humanitarian doctrine, contra the doctrine of concurrent negligence is left to operate as a defense in full play. . . . Self preservation is nature's first law and nature's imposed duty. Every man lives, moves and has his being within that law and duty. He cannot escape therefrom if he would and ought not if he could. Not to obey that law and use one's Godgiven senses in as primate a duty is tantamount to casting the whole burden of saving one's life or limb on the other party. Why should that be done? We cannot well write the law to be that everyone owes to A the duty of preserving A's life or limb, except A himself. Judge LAMM in Keele v. Railroad, 258 Mo. 78-81, and authorities cited. A person, sui juris, approaching a railroad track or crossing at right angles, on foot, at an ordinary gate and in complete control of his own movements...
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