Klockenbrink v. St. Louis & Meramec River Railroad Company

Decision Date17 March 1903
PartiesKLOCKENBRINK v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant
CourtMissouri Supreme Court

Transferred from St. Louis Court of Appeals.

Affirmed.

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

(1) If plaintiff's negligence "directly contributed to produce the injury," he can not recover; and the trial court erred in declaring a different rule of law by the tenth instruction to the jury. It is only where plaintiff's negligence is "previous" or "remote" or "secondary" that the principle illustrated by Davies v. Mann, 10 M. & W. 546, becomes applicable. The law is positive, in Missouri and elsewhere, that where plaintiff's negligence directly contributes to his injury he can not recover. 7 Am. and Eng. Ency. Law (2 Ed.), 373; Moore v. Railroad, 126 Mo. 278; Adams v. Ferry Co., 27 Mo. 95; Karle v. Railroad, 55 Mo. 476; Brown v. Comrs., 9 New S. Wales (L. R.) 92; Devine v. Railroad, 88 N.Y. 256; Johnson v Railroad, 54 N.Y.S. 452; O'Keefe v. Railroad, 54 N.Y.S. 1088. (2) Plaintiff did not, in his petition, assert any negligence on defendant's part by reason of any omission to ring the bell of the car prior to the collision; hence, it was error to refuse defendant's eighth request for an instruction that such omission did not create any liability on the part of defendant. Plaintiff should not be allowed to recover on a cause of action not stated in his petition. Chitty v. Railroad, 49 S.W. 868; Waldheir v. Railroad, 71 Mo. 514; Barkley v. Railroad, 96 Mo. 381; Edens v. Railroad, 72 Mo. 212. (3) The learned trial court erred in refusing defendant's third request for instruction. There was no ordinance or law limiting the speed of the car at the place of this accident, and hence that request should have been given according to the views of all the judges in Sullivan v. Railroad, 117 Mo. 215. (4) The learned circuit court erred in refusing defendant's tenth request for instruction that the speed of the car was not negligence prior to the time when the motorman might have discovered the vehicle on the track by the use of ordinary care on his part. No such speed as was shown in this case is negligence in the absence of municipal or other valid limitation thereof. Maher v. Railroad, 64 Mo. 267; Powell v. Railroad, 75 Mo. 80; Young v. Railroad, 79 Mo. 336.

R. P. Williams for respondent.

(1) The contributory negligence of plaintiff becomes immaterial if defendant could have avoided doing plaintiff injury by the exercise of ordinary care. Cooney v. Railroad, 2 Mo.App. 646; Bunyon v. Railroad, 127 Mo. 12; Hanlan v. Railroad, 104 Mo. 389; Fiedler v. Railroad, 107 Mo. 645; Hicks v. Railroad, 124 Mo. 115. (2) Instructions 7 and 10 given by the court of its own motion, and instruction 3 given upon the motion or request of plaintiff, and instruction 9 given upon request of defendant, all taken together submitted every question to the jury which defendant was entitled to have submitted, including that of the contributory negligence of plaintiff. Rhine v. Railroad, 88 Mo. 396; Maher v. Railroad, 64 Mo. 267; Bergman v. Railroad, 88 Mo. 678; Kellny v. Railroad, 101 Mo. 67. (3) Whether or not the rate of speed at which a car is run is so excessive and reckless as to constitute negligence, is a question for the jury, to be determined by all the attendant facts and surrounding circumstances. Taylor v. Railroad, 83 Mo. 390; Stepp v. Railroad, 85 Mo. 234; Pryor v. Railroad, 69 Mo. 215; Duffy v. Railroad, 19 Mo.App. 388. Defendant was not entitled to an instruction singling out the fact of the non-liability of defendant for failure to ring the bell at and before the time of the accident. If they mean to say that instruction 8 should have been given because the ringing of the bell was not alleged as negligence in the petition, then the defendant could not avail itself of the variance -- if it could possibly be called a variance -- without complying with section 2096, Revised Statutes 1889.

OPINION

GANTT, P. J.

Action for personal injuries. Suit commenced November 19, 1898. Amended petition filed March 15, 1899. The petition, as amended, states that defendant is a railroad corporation organized under the laws of this State and was on July 19, 1898, operating its railroad over and along the streets and highways of Webster Groves, a town in St. Louis county. That on that day plaintiff was driving a large stake wagon, to which was attached two horses, over and along a highway in St. Louis county, to-wit, Lockwood avenue, in said town of Webster Groves, going in an easterly direction; that one of defendant's servants in charge of one of its cars, moving along and upon its track in Lockwood avenue in the same direction in which plaintiff was traveling and at a high and unusual rate of speed, carelessly and negligently ran into and against plaintiff's wagon from the rear; that the said defendant by its said servant at the time saw said wagon which plaintiff was driving, or in the exercise of reasonable care might have seen said wagon and plaintiff, in time to stop the said car before striking or running into said wagon; that the wagon was broken, torn to pieces and one of the horses killed and the other permanently disabled, and plaintiff was thrown to the ground, his finger broken, his back sprained, and he was otherwise maimed, bruised and wounded in his body, and has suffered and will continue to suffer much pain in body and mind, and has been permanently injured and disabled, and has been compelled to spend large sums of money for medicine and medical treatment, etc., to his damage in the sum of $ 2,500, for which he prays judgment.

The answer is a general denial, and a plea of contributory negligence on the part of plaintiff in driving upon the defendant's track on a dark night when there was plenty of room on a well-improved street where he could have driven, and continued to drive on the tracks without looking or listening for an approaching car. The reply denied all new matter. There was a verdict and judgment for plaintiff for $ 1,500 from which defendant appeals.

Various errors are assigned which we will consider in their order. This appeal is in this court by reason of a division of opinion in the St. Louis Court of Appeals.

Did the circuit court err in overruling the demurrer to the evidence?

As the defendant did not stand on its demurrer at the close of plaintiff's evidence, this question must be answered in view of the whole evidence; that which was offered by defendant as well as plaintiff. [McPherson v. Railroad, 97 Mo. 253.]

The defendant by putting in its evidence after its request for such an instruction had been made and overruled, took the chances of curing any defect in the plaintiff's evidence, but did not wholly waive its right to have the ruling of the court reviewed, but this court will look to the whole evidence no matter by whom offered. This is the settled practice in this State. [Eswin v. Railroad, 96 Mo. 290; Jennings v. Railroad, 112 Mo. 268.]

The testimony established that plaintiff on July 19, 1898, was a teamster; that he drove two horses to a very large stake wagon, and on that day had taken a load of freight from St. Louis to Kirkwood in St. Louis county, and was returning to the city in the night; that his route required him to come through Webster Groves, and when he reached that town coming from the west, he entered upon Lockwood avenue, a street or highway on which defendant had its railroad tracks. From the top of the hill on which he came into Lockwood avenue, there was a decline for about 1,800 feet, and then another elevation was reached.

It was about midnight. Plaintiff drove safely down the first hill and had gone about two hundred feet up the second when one of defendants' electric cars struck his wagon from the rear, and killed one of his horses, crippled the other and threw plaintiff out of the wagon, severely injuring him. At the time the wagon was struck by defendant's car, one of the horses and the two left wheels were inside of the rails of defendant's track and the other horse and the remainder of the wagon were outside and between the south rail and the curb line, which was about twelve feet distant. Between the south rail and the curb line, there were telephone poles at intervals of about 150 feet, so that plaintiff's wagon could not pass between the telephone poles and the south track without coming within the reach of a car, should one pass the wagon opposite the poles.

There was also evidence that a buggy in which there were three men was traveling along the avenue that night, and near this wagon. The plaintiff's witnesses all place this buggy some thirty to sixty feet in the rear of the wagon and following it. The defendant's witnesses testified that the buggy was in front of the wagon, some thirty-five to fifty feet ahead of the wagon, when the motorman first discovered it.

As usual there was considerable discrepancy as to the rate of speed at which the car was moving. It was variously estimated from 15 or 18 to 20 or 25 miles an hour.

The plaintiff neither observed nor heard the approach of the car.

The testimony of Rockwell, the electrician for the defendant, was that if there was a mist or rain on the headlight, the motorman ought to see an object on the track seventy-five feet ahead of him. If there was no mist or rain on the headlight, he ought to see 150 feet ahead of him.

Greenhurst, the motorman, says he could stop the car, moving as it was at the time, within one hundred feet, and Rockwell as an expert concurred in that statement.

Both Greenhurst and McManus, who stood in the front door of the car talking to Greenhurst, say they saw the buggy about thirty-five to forty feet...

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