State ex rel. Wells v. Haid

• Citation: 25 S.W.2d 92,324 Mo. 759
• Decision Date: 19 February 1930
• Docket Number: 29877
• Parties: The State ex rel. Rolla Wells, Receiver of United Railways Company, v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

25 S.W.2d 92

324 Mo. 759

The State ex rel. Rolla Wells, Receiver of United Railways Company, v. George F. Haid et al., Judges of St. Louis Court of Appeals

No. 29877

Supreme Court of Missouri

February 19, 1930

Record quashed.

T E. Francis and B. G. Carpenter for relator.

In holding that the giving of defendant's (relator's) Instruction 4 was reversible error for the reason that said instruction did not require the jury to find that any warning which plaintiff might have given the driver of the automobile would have prevented the collision, in spite of the fact that the instruction in question did require the jury to find that plaintiff's negligence contributed to cause the accident said opinion and decision is erroneous and is in direct conflict with the following controlling decisions of the Supreme Court: Hof v. Transit Co., 213 Mo. 469; Corn v. Ry. Co., 228 S.W. 78.

Greensfelder Rosenberger & Grand for respondents.

The case of Hof v. Transit Company, 213 Mo. 445, is not in conflict with the decision of these respondents in the case at bar, and respondents in their opinion correctly interpreted the last ruling of this court in the case of Corn v. Ry. Co., 228 S.W. 78.

Cooley C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Certiorari to quash the opinion and judgment of the St. Louis Court of Appeals in a cause wherein one Sarah Schweig was plaintiff and relator herein was defendant. The action was for personal injuries sustained by the plaintiff while riding in an automobile operated by her brother-in-law in the city of St. Louis, which automobile was struck by a street car of defendant, plaintiff being injured in the collision. Upon trial to a jury a verdict was returned in favor of defendant, from the judgment upon which plaintiff appealed. The Court of Appeals reversed the trial court's judgment and remanded the cause solely because of alleged error in an instruction given on behalf of defendant by the trial court. Relator insists that in so ruling respondent judges misconstrued and failed to follow prior rulings of this court.

It is not necessary to refer to the pleadings and facts as stated by respondents in their opinion further than to say that defendant's answer denied the negligence charged in the petition and pleaded contributory negligence on plaintiff's part, and respondents held that the evidence justified submission of both issues, that is, defendant's negligence and plaintiff's contributory negligence. The pertinent part of respondents' opinion is as follows:

"As grounds for a reversal of the judgment plaintiff charges error in certain of the instructions given on behalf of defendant, among which was Instruction 4, reading as follows:

"'The court instructs the jury that the law requires that the plaintiff should exercise ordinary care for her own safety; that is, such care as an ordinarily prudent person would exercise under the same or similar circumstances. Therefore, if you find and believe from all the evidence in this case that the plaintiff failed to exercise ordinary care for her own safety in failing to warn the driver of the automobile in which she was riding when she saw or knew, or by the exercise of ordinary care could have seen and known, that he was driving said automobile into and against a moving street car; and if you further find that such failure to exercise ordinary care for her own safety contributed to cause her injuries, then you should find she is guilty of contributory negligence, and she cannot recover herein, and your verdict must be for the defendant.'

"We see no escape from the conclusion that this instruction was erroneous and prejudicial in that it permitted the jury to convict plaintiff of contributory negligence merely upon a finding that she failed to warn the driver, when she saw and knew, or by the exercise of ordinary care could have seen and known, that he was driving his automobile into and against a moving street car, whereas any failure on her part to have given a warning could not have been such negligence as to bar her right to recover, unless it was further made to appear that the warning would have prevented the collision. This the jury was not required to find.

"The Supreme Court, in speaking of a very similar situation, in Corn v. Kansas City, C. C. & St. J. Ry. Co., 228 S.W. 78, 82, has tersely said that 'unless the warning would have avoided the accident, it would have been of no avail to give it, and the failure to give it would not have contributed to causing the accident.' Accordingly, the court in that case held that a requested instruction for the defendant therein which omitted a hypothesis predicated upon the efficacy of the giving of a warning was properly refused on account of such omission.

"The language used by the Supreme Court in the Corn case is so pertinent to, and dispositive of, the matter in hand as to render any further discussion of the point unnecessary. It follows, therefore, that for the error in the instruction under consideration, the judgment for defendant may not be allowed to stand, unless it be true, as is suggested by counsel for defendant, that, under all the evidence in the case, plaintiff was not entitled to have her case submitted to the jury."

Respondents then discuss the question of whether or not plaintiff was entitled to have her case submitted to the jury, and hold that she was so entitled.

Relator contends that in holding the instruction in question prejudicially erroneous for the reason stated, respondents' opinion is in conflict with the decisions of this court in Corn v. Kansas City C. C. & St. J. Ry. Co., 228 S.W. 78, and Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S.W. 1166.

In Corn v. Kansas City C. C. & St. J. Ry. Co., supra, the plaintiff was injured in a collision between an automobile in which she was riding and one of the defendant's interurban cars. Plaintiff's husband was operating and in charge of the automobile. The trial court gave an instruction for defendant as follows:

"1. The court instructs the jury that, if you find from the evidence that plaintiff saw the car of defendant approaching the crossing when she was within fifteen or twenty feet of the track situated in said crossing, and that her husband attempted to cross the track in front of said car in such close proximity thereto as to make the danger imminent, and plaintiff was aware of such facts, and made no effort to warn the driver to stop or slacken the speed of said automobile so as to avoid the accident, and that such warning would have avoided the accident, then your verdict should be for defendant."

The trial court refused to give defendant's requested Instruction A which was the same as defendant's given Instruction 1, except that the italicized words of No. 1 were omitted. There was a verdict for plaintiff and defendant appealed. Ruling upon defendant's complaint that the trial court erred in refusing to give Instruction A, this court said:

"Instruction A was properly refused because it omitted the words italicized in Instruction 1, given for defendant, to-wit, 'and that such warning would have avoided the accident.' Unless the warning would have avoided the accident it would have been of no avail to give it and the failure to give it would not have contributed to causing the accident." (Italics ours.)

Does the above ruling amount to a holding that an instruction on contributory negligence in such case is erroneous which does not tell the jury specifically that, to bar recovery, the jury must find that the warning, if given, would have avoided the accident, but which does require a finding that the failure to warn contributed to cause the injuries complained of? We think not.

The rule is thoroughly established and has been announced many times by this court that the negligence of a plaintiff which directly contributed to cause his injury will prevent a recovery. [Hogan v. Citizens' Ry. Co., 150 Mo. 36, 55, 51 S.W. 473, and cases cited.] The usual form of instruction submitting that issue directs the jury in substance and effect that if it finds plaintiff guilty of the negligence specified and that such negligence of plaintiff directly contributed to his injury or to cause his injury, he cannot recover. Plaintiff's negligence need not be the sole cause of his injury. It is sufficient to bar recovery if his negligence concurs with that of defendant to cause it. [Hogan v. Citizens' Ry. Co., supra; Felver v. Central Electric Ry. Co., 216 Mo. 195, 211, 115 S.W. 980.] That rule doubtless accounts for the usual form of instruction stating that if plaintiff's negligence directly contributed to his injury he cannot recover.

In Hof v. St. Louis Transit Co., supra, the plaintiff Hof was riding a horse and was struck and injured by one of the defendant's street cars. The defendant pleaded and introduced evidence tending to prove contributory negligence on plaintiff's part. The trial court gave an instruction on contributory negligence reading as follows:

"It is charged in the defendant's answer that the plaintiff himself was guilty of carelessness and negligence which directly contributed to cause his injuries. With respect to this averment, you are instructed that, notwithstanding the defendant may have been guilty of negligence in this case, yet if you find that the plaintiff was himself guilty of some act of negligence which directly contributed to cause his injuries and losses, then plaintiff is not entitled to recover. If, therefore, you find that the plaintiff negligently caused the horse he was riding to attempt to pass in front of defendant's car when said car was so short a distance away as to prevent defendant's motorman in charge thereof, in the exercise of ordinary care, with the...