57 S.W. 770 (Mo. 1900), Holwerson v. St. Louis & Suburban Railway Company

Citation:57 S.W. 770, 157 Mo. 216
Opinion Judge:MARSHALL, J.
Party Name:HOLWERSON v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant
Attorney:McKeighan, Barclay & Watts and Robt. A. Holland, Jr., for appellant. A. R. Taylor for respondent.
Judge Panel:MARSHALL, J. Brace, P. J., and Robinson, J., concur in the result. Valliant, J., concurs in the result for reasons given in a separate opinion, but dissents from the doctrines announced in both paragraphs, of this opinion. VALLIANT VALLIANT
Case Date:June 12, 1900
Court:Supreme Court of Missouri
 
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Page 770

57 S.W. 770 (Mo. 1900)

157 Mo. 216

HOLWERSON

v.

ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

June 12, 1900

Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood, Judge.

Reversed and remanded (with directions).

McKeighan, Barclay & Watts and Robt. A. Holland, Jr., for appellant.

(1) On the whole evidence in this case, the verdict of the jury was right, and therefore the appellant is entitled to have its appeal sustained and the order for a new trial vacated. Ittner v. Hughes, 133 Mo. 689; Vogg v. Railroad, 138 Mo. 180. (2) The evidence shows that the deceased's negligence was contemporaneous with his being struck by defendant's car, and was "the immediate, direct and proximate cause of the injury," and that this is not a case of the prior negligence of the deceased, the effect of which could have been avoided by the defendant, but that on the contrary it is a case of the continuing negligence of the deceased, reaching down in point of time to his being struck; if such is the case, then, even though defendant's motorman may have been negligent, the plaintiff can not recover. Watson v. Street Railway, 133 Mo. 246; Huggard v. Railroad, 134 Mo. 673; Vogg v. Railroad, 138 Mo. 172; Culbertson v. Street Railway, 140 Mo. 35. It was the duty of the deceased before he went on defendant's track, to look and listen to see whether a car was approaching in close or dangerous proximity. Paine v. Railroad, 136 Mo. 562; Baker v. Railroad, 122 Mo. 533; Kelsey v. Railroad, 129 Mo. 362; Bunyan v. Street Railway, 127 Mo. 12. (3) The court below sustained the motion for a new trial on the ground that error was committed by the court in giving, at the request of the defendant, instructions 2, 3, 4, 5 and 6, all other grounds for motion for new trial being overruled. The instructions referred to were drawn and given at the trial on the theory that defendant was only required to exercise the ordinary care of a prudent person under like and similar circumstances, and that the ordinance pleaded in plaintiff's petition and given in evidence did not impose a higher or a different character of care on defendant with respect to the deceased. This theory of the instructions was correct. Bowen v. Railroad, 95 Mo. 268; Tetherow v. Railroad, 98 Mo. 74; Wilkins v. Railroad, 101 Mo. 93; Hanlon v. Railroad, 104 Mo. 390; Dickson v. Railroad, 104 Mo. 504; Stanley v. Union Depot, 114 Mo. 624; Frick v. Railroad, 75 Mo. 595; Bunyan v. Railroad, 127 Mo. 12; Gulick v. Clark, 51 Mo.App. 26; Booth on Street Railroads, sec. 309. (4) It was necessary for plaintiff to both plead and prove that the ordinance had been accepted by the defendant. The plaintiff did not so plead or prove. Therefore, instructions 2, 3, 4, 5 and 6 were correct, even though said ordinance, if accepted, would have changed the common law care required of defendant. Fath v. Street Railway, 105 Mo. 537; Moran v. Pullman, 134 Mo. 641; Sanders v. Street Railway, 48 S.W. 855.

A. R. Taylor for respondent.

(1) The evidence for the plaintiff presented a case of prior negligence by the deceased in going upon the track, and subsequent negligence of the motorman in suffering the car to drag deceased and run over and kill him, when he could readily have stopped the car and averted the killing after the deceased was struck and being dragged. This doctrine that a railroad corporation may not, by its servants, run over and drag and kill a citizen when by the exercise of ordinary care, it could avert the injury, is not overthrown by the cases of Fath v. Railroad, Sanders v. Railroad, or Murphy v. Railroad. In the latter case the doctrine is distinctly recognized. The same doctrine is sustained in the recent case of Schmidt v. Railroad, 149 Mo. 285. (2) As the record discloses nothing as to the contents of the ordinance read in evidence, nor does it disclose whether or not the ordinance was in force when the defendant obtained its right to use the streets for its railroad, this court ought to presume in favor of the correctness of the trial court's order granting a new trial for error in the instructions given at instance of the defendant.

If the ordinance was in force when the defendant obtained its franchise to use the streets it would seem no special acceptance or agreement to obey the ordinance would be necessary. It would be necessarily implied from accepting its franchise to operate its road. Chouquette v. Railroad, 152 Mo. 257.

MARSHALL, J. Brace, P. J., and Robinson, J., concur in the result. Valliant, J., concurs in the result for reasons given in a separate opinion, but dissents from the doctrines announced in both paragraphs, of this opinion.

OPINION

[157 Mo. 220] MARSHALL, J.

Appeal by defendant from an order granting the plaintiff a new trial, after a verdict for the defendant, the reason assigned for granting the new trial being error of law in giving instructions for the defendant.

The petition alleges that Andrew Holwerson, the plaintiff's husband, was run over and killed on August 6, 1892, by one of defendant's electric cars, at the corner of Lucas avenue and Fourteenth street in St. Louis. The petition first charges common-law negligence, and second, the violation of a general ordinance of that city which requires motormen [157 Mo. 221] and conductors of street cars to keep a vigilant watch for all persons on foot, either upon the tracks, or moving towards them, and upon the first appearance of danger to such person to stop the car within the shortest time and space possible, which ordinance provision the petition charges that the defendant undertook and agreed to obey in consideration of the granting of its franchise by the city.

The answer is a general denial and a plea of contributory negligence on the part of the deceased. The trial resulted in a verdict for the defendant, and the circuit court granted the plaintiff a new trial, assigned as a reason therefor, "that the court erred in giving instructions numbered 2, 3, 4, 5 and 6, at the request of the defendant, and overruled as to other grounds."

Those instructions are as follows:

"2. The court instructs the jury that before the plaintiff can recover against the defendant in this action, it is incumbent upon her to prove to the satisfaction of the jury that the employees of defendant in charge of the car in question failed and neglected to exercise ordinary care and diligence in stopping its car in time to have avoided the injury to the deceased, Andrew Holwerson; and unless the plaintiff has shown by the evidence such want of ordinary care on the part of the defendant company's employees in charge of said car, then the jury will find their verdict for the defendant.

"3. The court instructs the jury that before the plaintiff can recover from the defendant

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in this action, it is incumbent upon her to establish to the satisfaction of the jury that the employees of the defendant company in charge of its car after they saw or by the exercise of ordinary care might have seen the danger to the deceased Andrew Holwerson, were guilty of carelessness or negligence in failing and neglecting to stop said car in time to have averted the injury to said deceased, Andrew Holwerson.

[157 Mo. 222] "4. The court instructs the jury that the employees of the defendant company owed to the deceased, Andrew Holwerson, only that degree of care which an ordinarily careful and prudent person engaged in the same business would have exercised under like and similar circumstances; and if the jury believes from the evidence that the employees of the defendant company exercised such care, then the jury will find their verdict in favor of the defendant.

"5. The court instructs the jury that if they believe from the evidence that the employees of defendant in charge of the car in question used ordinary care in the management of said car at and near the place where the deceased, Andrew Holwerson, was injured, and that as soon as they saw the deceased, Andrew Holwerson, in a position of danger, or by the exercise of ordinary care might have seen that he was in danger, they used such care and caution in stopping said car to avoid injury to said deceased, Andrew Holwerson, as a person of ordinary care and produce would have exercised under like and similar circumstances, then the verdict of the jury must be for the defendant.

"6. The court instructs the jury that it was the duty of the deceased, Andrew Holwerson, before going on or across the tracks of the defendant company, to look and listen for approaching cars of said defendant company; and if you find from the evidence that the deceased, Andrew Holwerson, failed so to do, and that by looking and listening he could have seen or heard the approaching car of the defendant company in time to have averted the injury to himself, then you must find your verdict for the defendant, unless you further find from the evidence that the employees of the defendant engaged in the operation of its car, after they saw, or by the exercise of ordinary care could have seen, that deceased was in a position of peril, to use such care and caution in stopping said car to avoid injury to said deceased, [157 Mo. 223] Andrew Holwerson, as a person of ordinary care and prudence would have exercised under like and similar circumstances."

The instructions given for the plaintiff followed the lines of the petition and authorized a verdict for the plaintiff if the defendant was guilty of common-law negligence (it is not necessary to analyze that instruction here) and also if the defendant was found guilty of a violation of the city ordinance pleaded, laying special stress upon that feature of the ordinance that requires a motorman to keep a...

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