Treadway v. United Railways Company of St. Louis

• Decision Date: 31 July 1923
• Citation: 253 S.W. 1037,300 Mo. 156
• Parties: ELTON TREADWAY, by PARALEE TREADWAY, His Next Friend, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Supreme Court

253 S.W. 1037

300 Mo. 156

ELTON TREADWAY, by PARALEE TREADWAY, His Next Friend, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Supreme Court of Missouri, First Division

July 31, 1923

Appeal from St. Louis County Circuit Court. -- Hon. G. A. Wurdeman Judge.

Reversed and remanded.

Charles W. Bates, T. E. Francis and A. E. L. Gardner for appellant.

(1) The court erred in refusing to give the jury the peremptory instruction to find for defendant, for the reason that plaintiff was not entitled to recover under any theory of negligence counted on in his petition. (a) Plaintiff was not entitled to recover under the lastchance doctrine, because there was no proof as to the relative positions of the automobile and the street car at any time, and no showing as to the distance within which the street car could have been stopped, after the perilous situation of the automobile became, or should have become, apparent to the motorman, and therefore, the evidence was not sufficient to warrant a finding that the street car could have been stopped in time to have averted the collision after the automobile entered the "danger zone." Alexander v. Railroad, 233 S.W. 49; Burge v. Railroad, 244 Mo. 96; Fleming v. Railroad, 263 Mo. 189; Keele v Railroad, 258 Mo. 79; Paul v. Railroad, 152 Mo.App. 583; Zurfluh v. Peoples Ry. Co., 46 Mo.App. 636; Baecker v. Railroad, 240 Mo. 521; Hamilton v. Railroad, 250 Mo. 722; McGee v. Railroad, 214 Mo. 541; Roenfeldt v. Railroad, 180 Mo. 568. (b) Plaintiff was not entitled to recover under the negligent speed theory for the reason that this accident occurred at an "ordinary and usual country crossing," where there was no limitation as to speed. Burge v. Railroad, 244 Mo. 102. (c) The evidence tending to show that the car was operated at a speed of thirty or thirty-five miles an hour and that the gong was not sounded, did not warrant a recovery by plaintiff, for the reason that these alleged derelictions were not the proximate causes of the collision, and hence were not actionable, since the evidence does not disclose where the car was when the automobile was driven upon the track or so near to it as to evidence a present intention of the driver to go upon it, and hence, for aught that appears, it may have been driven upon the track immediately in front of the street car. Moore v. Railroad, 176 Mo. 544; Battles v. Railroad, 178 Mo.App. 613; Jackson v. Railroad, 157 Mo. 645. Negligence not proximately causing the injury complained of is not actionable. State ex rel. v. Ellison, 176 S.W. 13; Jackson v. Butler, 249 Mo. 365. (d) The contributory negligence of decedent, in permitting himself to be driven backward in the automobile, paralleling the track and then turning and driving upon it, when, while travelling in this manner for a distance of over thirty feet, he saw, or by the exercise of ordinary care could have seen, that the driver was not looking to see whether or not a car was approaching, bars a recovery by plaintiff on every theory of primary negligence. Alexander v. Railroad, 233 S.W. 48; Burge v. Railroad, 244 Mo. 94; Gubernick v. Railroad, 217 S.W. 35; McCreery v. Railroad, 221 Mo. 31; Owens v. Railroad, 188 Mo.App. 454; Sanguinette v. Railroad, 196 Mo. 466, 491; Hayden v. Railroad, 124 Mo. 571; Huggart v. Railroad, 134 Mo. 673; Kelsay v. Railroad, 129 Mo. 372; Costello v. Railroad, 213 S.W. 180; Voelker Products Co. v. Railroad, 185 Mo.App. 317; Tannehill v. Railroad, 279 Mo. 158; Boring v. Railroad, 194 Mo. 548; Dyrcz v. Railroad, 238 Mo. 46; Keele v. Railroad, 258 Mo. 80; Walker v. Railroad, 193 Mo. 480; Peters v. Lusk, 200 Mo.App. 381; State ex rel. v. Reynolds, 214 S.W. 121. It is contributory negligence as a matter of law for a passenger in a vehicle to permit himself to be driven upon the track, when he sees, or by the exercise of ordinary care can see, that the driver is not looking for approaching cars. Fechley v. Railroad, 119 Mo.App. 358; Leapard v. Railroad, 214 S.W. 268; Tannehill v. Railroad, 279 Mo. 169. (2) The court erred in giving the jury plaintiff's Instruction 1, for the reason that it permitted a recovery by plaintiff even though the collision between defendant's street car and the automobile in which plaintiff's decedent was riding was "due to the negligence of the driver of the automobile." Tannehill v. Railroad, 279 Mo. 171; Krehmeyer v. Transit Co., 220 Mo. 655. Instructions which permit a recovery upon a finding that defendant's negligence merely "contributed" to cause plaintiff's injury are erroneous. Hof v. Transit Co., 213 Mo. 467; Krehmeyer v. Transit Co., 220 Mo. 639. This instruction permitted a recovery by plaintiff although defendant was not even remotely negligent. The instruction directed the jury that they should not find for defendant (conversely; that they could find for plaintiff), even though they found that the collision was "due to the negligence of the driver of the automobile" -- that is to say, even though defendant was not negligent. (3) The court erred in giving the jury plaintiff's Instruction 2, defining the measure of damages, for the reason that it permitted a recovery for compensatory damages, when the Wrongful Death Statute, under which the action was brought (Sec. 4217, R. S. 1919), imposes a penalty, and does not authorize an award of compensatory damages. Grier v. Railroad, 228 S.W. 454. The jury were not instructed that, in assessing the penalty, they could take into consideration the pecuniary injury to plaintiff, but they were directed to award plaintiff damages to compensate him for the financial loss sustained by him as the result of the death of his decedent.

Arthur V. Lashly for respondent.

(1) The demurrer to the evidence was properly overruled. (a) The defendant was negligent in the operation of the car under the humanitarian rule and by excessive speed and failure to give a signal of the approach of the car. (b) If the issue of contributory negligence was in the case at all it was for the jury. Martin v. Rys. Co., 204 S.W. 589; King v. Rys. Co., 204 S.W. 1129; Kamoss v. Rys. Co., 202 S.W. 434; Lilly v. Rys. Co., 209 S.W. 969; Draper v. Rys. Co., 203 S.W. 646; Strauchon v. Met. St. Ry. Co., 232 Mo. 587; Ziegler v. Rys. Co., 220 S.W. 1016. (2) The defendant's instructions were explicit on the question of the contributory negligence of the plaintiff's decedent and in the light of those instructions plaintiff's instruction number one was not error, or if error, did not affect the merits, and was harmless. (3) This action is under Secs. 4217 and 4218, R. S. 1919 (Secs. 5425, 5426, R. S. 1909) and plaintiff's Instruction two properly declares the measure of damages. The defendant cannot complain if plaintiff in its instruction assumed a greater burden than the statute imposed upon him. McPherson v. Railroad, 97 Mo. 253; Goss v. Railroad, 50 Mo.App. 614; Sipple v. Gas Co., 125 Mo.App. 81; Ellingson v. Railroad, 60 Mo.App. 679. (b) The petition asks for general damages not as a penalty and this with the instructions fixes the character of the suit. Johnson v. Ry. Co., 270 Mo. 418; Powell v. Railroad, 255 Mo. 420.

RAGLAND, J. James T. Blair, J., concurs in paragraphs 1, 2, 3, 5, and the result.

OPINION

RAGLAND, J.

An opinion in this case was prepared by one of our commissioners, to which in its entirety we were unable to agree. His statement of facts and his conclusions of law in part, however, have our concurrence and we adopt them, as follows:

"This case, on appeal from the Circuit Court of St. Louis County submitted at the October term, 1921, has been reassigned for consideration and decision.

"The plaintiff, aged eleven years, by his next friend brought this suit against defendant to recover damages for the death of his father, Marion Treadway, who was killed as the result of a work car of defendant striking an automobile in which Marion Treadway was riding, and which was being driven at the time by William Treadway. Marion Treadway was fifty-four years old, and William Treadway his son, a half-brother of plaintiff, was a grown man. The accident occurred at about nine o'clock on the morning of January 12, 1919, and at the crossing of defendant's tracks and Page Avenue, St. Louis County. Page Avenue extends east and west and is about fifty feet in width, and defendant's two tracks extending north and south cross it at right angles. At the southwest corner of the crossing space is a building fronting north on Page Avenue, and extending back south about one hundred feet. Extending north and south along the east side of this building is an open space or driveway twenty to twenty-five feet wide, between the building and the tracks of defendant. William Treadway lived in this building; and the outer door of his quarters was about seventy feet south of Page Avenue. At the time in question Marion Treadway, who lived at Graniteville, Missouri, was visiting William for a few days. On that morning William Treadway intended to drive to Clayton in his automobile, and Marion Treadway was going with him.

"At the time of starting, the automobile stood on the driveway headed south, in front of William Treadway's store, and they entered the car, which was a Maxwell, at that point. William Treadway took the driver's place, and Marion Treadway sat at his right, in the front seat. The automobile top was closed, except that the front curtains were raised or pushed back. William Treadway had artificial limbs (feet and lower legs presumably), but for several years had been driving an automobile. He backed the automobile north along the driveway, to the south line of Page Avenue. There he stopped the automobile, still headed south and standing about six or eight feet west of the rail of defendant's west track. He looked out and back north down defendan...