73 S.W. 239 (Mo.App. 1903), Frank v. St. Louis Transit Company

Citation:73 S.W. 239, 99 Mo.App. 323
Opinion Judge:GOODE, J.
Party Name:HENRY FRANK, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant
Attorney:Boyle, Priest & Lehmann, Kiskaddon & Matthews and George W. Easley for appellant. Henry A. Baker, Chas. W. Holtcamp and R. Lee Mudd for respondent.
Judge Panel:GOODE, J. Bland, P. J., and Reyburn, J., concur.
Case Date:March 03, 1903
Court:Court of Appeals of Missouri
 
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Page 239

73 S.W. 239 (Mo.App. 1903)

99 Mo.App. 323

HENRY FRANK, Respondent,

v.

ST. LOUIS TRANSIT COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 3, 1903

Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney, Judge.

AFFIRMED.

Judgment affirmed.

Boyle, Priest & Lehmann, Kiskaddon & Matthews and George W. Easley for appellant.

(1) If a witness who can see testifies that he looked and did not see an object which, if he looked, he must have seen, such testimony is unworthy of consideration. Baltimore Traction Co. v. Helmes (Md.), 1 Am. Neg. Rep. 64-65. Such testimony in the face of the evidence and the physical facts in this case has no probative force and does not raise a question of fact to be submitted to a jury. "It will be disregarded as testimony by the court." Hook v. Railroad, 162 Mo. 581; Kilsey v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. 573; Payne v. Railroad, 136 Mo. 575. (2) The first instruction given for plaintiff was erroneous in the following particulars: (a) It improperly charged that the want of a headlight upon the car was a ground of recovery. There is neither ordinance nor statute requiring a headlight to be used on cars in the daytime, and it can not be negligence per se to so operate a car in the daytime. (b) It improperly charged that a failure to ring the bell was a ground of recovery. "There is no statute making it the duty of the gripman to sound the gong or bell at the approach of a street crossing, and there is no law making a failure to do so negligence per se. Such failure becomes negligent only when the circumstances render the ringing of the bell necessary, and, if the circumstances are in dispute, whether the occasion is such as to call for the sounding of the bell is a question of fact for the jury." Schmidt v. Railroad, 163 Mo. 657. There is a total absence of anything like submitting to the jury whether the circumstances were such as to make it the duty of defendant to sound the bell. The instruction makes the duty an absolute one. If it was to be submitted to the jury, it should have also been submitted to them to find the facts which created the duty to sound the bell. (c) It improperly submitted to the jury whether any of the enumerated acts "constituted negligence." (3) The third instruction given for plaintiff excludes from consideration the concurring negligence of plaintiff, and authorizes a verdict for plaintiff, although plaintiff did not "exercise all care in his power for his own safety."

If it be true that had plaintiff looked and listened at the proper place, he could have seen and heard the car, then there was no question but that the proximate cause of the injury (on the theory that defendant was negligent) was the concurring negligence of both parties, and there could be no recovery. Hornstein v. St. Louis Transit Co., St. L. Ct. App. (not yet reported).

Henry A. Baker, Chas. W. Holtcamp and R. Lee Mudd for respondent.

(1) As to contributory negligence, if true, as appellant has unwittingly premised "that respondent heard nothing of the car, when he might have seen and heard;" or that, "if he looked he might have seen it;"--then appellant's authorities, cited in its brief, might more pertinently apply, as placing the respondent's testimony in the light of acknowledged intervention of unheeded warning, or in conflict with self-evident physical fact; but, recollecting here, as we can not but do, the curve; the intermediate obstruction of view; the respondent's return to his place on the long-coupled twelve-foot pole wagon, after first looking from a point where he "might have seen," as he says he did, if the car had then turned the curve; and also the inferential acceleration of that car's speed--we then must reflect the fact that this principle of "Contradiction of physical fact," to be pertinent must, in reality, contradict a physical fact; so that the assumption of its truth would present physical impossibility. Weaver v. Railroad, 60 Mo.App. 210; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 590. (2) Now, passing to the instructions, we say primarily that the little complained of goes, at best, with the fact that the essential substance of it all is covered and dispelled by appellant's own quite fulsome set of instructions, or is, otherwise, imputable merely to the court's economy of omission to such extent only as that, but for the modest declination of appellant's counsel to request other instructions at the time, the alleged hiatus might have been even superlatively supplied. Points of refused instructions covered by other instructions (more particularly those of the same party), are, of course, not ground for complaint. 2 Thompson on Trials, 2352; Spry v. Railroad, 73 Mo.App. 216. Otherwise appellant should have requested instructions to cover features of his own particular theory. 2 Thompson on Trials, sec. 2341; Chouquette v. Railroad, 80 Mo.App. 520. (3) There being nothing to obstruct his hearing except...

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