Moore v. Lindell Railway Company

• Citation: 75 S.W. 672,176 Mo. 528
• Parties: MOORE, Appellant, v. LINDELL RAILWAY COMPANY
• Decision Date: 02 July 1903
• Court: United States State Supreme Court of Missouri

75 S.W. 672

176 Mo. 528

MOORE, Appellant, v. LINDELL RAILWAY COMPANY

Supreme Court of Missouri, First Division

July 2, 1903

Appeal from St. Louis County Circuit Court. -- Hon. Rudolph Hirzel Judge.

Affirmed.

A. R Taylor for appellant.

(1) The first instruction given for defendant is fatally bad in conceding the defendant's negligence as a contributing cause, and defeating the plaintiff if the deceased was herself negligent in going upon the track, leaving out of view the whole theory of the law as settled in this State -- that, although the plaintiff may be negligent in going upon a track and failing to look and listen, yet, if the defendant by its servants in charge of the car, saw, or, by keeping a vigilant watch, could have seen, the deceased on or moving towards the track and in danger from the car and could have stopped the car and averted the injury, then defendant is liable, notwithstanding plaintiff's negligence. As the law stands now in this State, and in most of the other States, this is a correct statement of the law. Burnham v. Railroad, 56 Mo. 342; Meyers v. Railroad, 59 Mo. 231; Dunkman v. Railroad, 95 Mo. 244. The law is even extended to a trespasser upon the track. Fiedler v. Railroad, 107 Mo. 652; Guenther v. Railroad, 108 Mo. 21. "The law of this State is too thoroughly settled [for controversy] that the defendant is liable, even to a trespasser, if it fails to use ordinary care to prevent injuring him after discovering his peril." Reardon v. Railroad, 114 Mo. 406; Chamberlain v. Railroad, 133 Mo. 599; Morgan v. Railroad, 159 Mo. 280. The deceased in this case was not a trespasser. She was lawfully upon the public street at a crossing. Yet this instruction tells the jury, in substance, that if she was negligent in going across the track without looking for a car, the defendant is not liable, "even though guilty of one or the other of the acts charged." That is to say, that, although the motorman saw the woman (as he says he did, and that she was in danger, as he says), and though he could have stopped the car and averted the injury, as the instruction concedes, yet, for the sole reason that the deceased was guilty of going across the track negligently, a recovery is denied. To sustain this instruction is to overthrow the whole settled law of this State, and, more, it would nullify the beneficent protection afforded by the ordinance requiring a vigilant watch and the stoppage of the car to prevent the killing of the citizen. (2) The second instruction given for the defendant is, perhaps, the most pernicious of the series given for the defendant. It can not be contended that said instruction is the law of this State, but the converse of the proposition is the law, to-wit: that although the woman attempted to cross the track in front of the car, and was negligent in so doing, yet, if the defendant's servants, in charge of the car "after such dangerous position of the deceased became known to them" could have averted the injury (by ordinary care is the rule in most cases, but in this case) by stopping the car within the shortest time and space possible, as required by the ordinance, and failed to do so, then the defendant is liable, notwithstanding the negligence of the deceased in attempting to cross the track in front of the car. This is the well-settled law of this State in cases cited above. The instruction does not seek to excuse the defendant for the reason that its servants could not have averted the injury, but boldly declares that, although they saw her condition of peril, brought about by her negligence in attempting to pass in front of a moving car, yet they could, without using "proper care," run her down, with impunity. The instruction is not in accord with the settled law, and declares a principle inhuman and criminal. Reardon v. Railroad, 114 Mo. 406.

Geo. W. Easley, with Boyle, Priest & Lehmann for respondent.

(1) There was no error in giving either the first or second instruction on behalf of the defendant. They each properly announced the doctrine that, notwithstanding the negligence of the defendant, yet the plaintiff is not entitled to recover if the jury find from the evidence that the deceased was injured by knowingly trying to pass in front of a moving car in such proximity thereto as to make the danger imminent. It was undisputed that the deceased could have seen and heard, had she looked and listened for the approach of the car, and could, by ordinary care, have avoided injury, and her conduct was such contributory negligence as bars the plaintiff's recovery. Holverson v. Railroad, 157 Mo. 216; Watson v. Railroad, 133 Mo. 250; Boyd v. Railroad, 105 Mo. 371; Sinclair v. Railroad, 133 Mo. 241; Huggert v. Railroad, 134 Mo. 673; Vogg v. Railroad, 138 Mo. 172; Culbertson v. Railroad, 104 Mo. 35; Railroad v. Mosley, 57 F. 922; Kirtley v. Railroad, 65 F. 391; Murphy v. Railroad, 153 Mo. 262; Butts v. Railroad, 98 Mo. 272; Loring v. Railroad, 128 Mo. 349; Kries v. Railroad, 148 Mo. 321; Kotney v. Railroad, 151 Mo. 35; Kelsey v. Railroad, 129 Mo. 262; Lane v. Railroad, 132 Mo. 4; Scofield v. Railroad, 114 U.S. 615; Maxey v. Railroad, 113 Mo. 1; Payne v. Railroad, 136 Mo. 562. (2) There was no error in giving either the third or fourth instruction on behalf of the defendant. They both assert the doctrine that the motorman had the right to assume that the deceased knew the car was approaching, and would have regard for her own safety, and not attempt to pass in front of the same if it was manifestly unsafe so to do, but that she would stop before passing onto the track. The motorman had a right to proceed at a lawful rate of speed until the deceased placed herself in position of peril by coming upon the track, or so close to it as to endanger her. Boyd v. Railroad, 105 Mo. 381; Smith v. Railroad, 52 Mo.App. 42; Baker v. Railroad, 122 Mo. 595; Yancey v. Railroad, 93 Mo. 438.

MARSHALL, J. Brace, P. J., concurs; Valliant, J., concurs in the result; Robinson, J., absent.

OPINION

MARSHALL, J.

This is an action under the statute, to recover five thousand dollars damages for the death of the plaintiff's wife, on the 14th of October, 1896, caused by being run into and injured by one of the defendant's electric cars, on Fourteenth street, opposite the termination of Belmont street, in the city of St. Louis. There was a verdict and judgment for the defendant, and the plaintiff appealed.

The petition charges that the plaintiff's wife was crossing Fourteenth street, "on the north crossing of Belmont street" (the evidence on both sides showed she was crossing on the south crossing), and that the car, without any warning being given of the approach of the car by the ringing of the bell or otherwise, ran upon her, knocked her down and so injured her as to cause her death.

The petition assigns as further negligence, that there was a city ordinance in force, which required motormen and conductors to keep vigilant watch for vehicles and persons on foot, especially children, either upon the track or moving towards it, and upon the first appearance of danger to stop the car within the shortest time and space possible, and that the defendant's motorman and conductor failed to obey the requirements of this ordinance. The petition assigns as further negligence, that there was a city ordinance in force which prohibits the defendant from running its cars at a greater rate of speed than ten miles an hour, and that the car that struck the plaintiff's wife was running at a greater rate of speed than ten miles an hour.

The petition charges that in consideration of the grant by the city of the right to operate its cars, the defendant undertook and bound itself to observe and obey the provisions of the ordinances herein referred to.

The answer is a general denial, and a plea of contributory negligence, in that the plaintiff's wife walked "upon defendant's track in front of its car, without looking or listening for an approaching car, in such proximity to the car that it was impossible to stop the car and avoid the collision and injury."

The locus in quo was this: Fourteenth street runs north and south and is eighty feet wide, and the defendant has a double track thereon, near the center of the street, the west track being used by the south-bound cars, and the east track by the north-bound cars. Belmont street is twenty-five feet wide, and intersects Fourteenth street on its west side. It stops at Fourteenth street. East of Fourteenth street, but not on a direct prolongation of Belmont street, there is an alley fifteen feet wide. The next street south of Belmont is Spruce street, and the distance between the two is only one hundred and fifty feet. The next street north of Belmont is Clark avenue, and the distance between these two is also only one hundred and fifty feet.

The undisputed facts in the case are that the deceased was the wife of the plaintiff; that they lived at 1411 Belmont street; that about ten o'clock on the night of October 14, 1896, she left the house to get the plaintiff something to eat; that she went east to Fourteenth street, and then started across Fourteenth street, at the south crossing of what would be the prolongation of the south side of Belmont street; that the street was free of obstruction, and while there were no lights at that point, there were lights at Spruce street on the south, and at Clark avenue on the north that the night was clear; that there was plenty of light there and an approaching car could have been easily seen as far south as Spruce street and as far north as Clark avenue; that the plaintiff's wife was proceeding across Fourteenth street, going in an easterly direction, when she was injured, and that Fourteenth street, at the point of the accident, is...