Shumate v. Wells

• Decision Date: 03 July 1928
• Docket Number: No. 26745.,26745.
• Citation: 9 S.W.2d 632
• Parties: ELNORA SHUMATE, by Her Next Friend, W.R. SHUMATE, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS.
• Court: Missouri Supreme Court

9 S.W.2d 632

ELNORA SHUMATE, by Her Next Friend, W.R. SHUMATE, Appellant, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS.

No. 26745.

Supreme Court of Missouri. Division One.

July 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Douglass & Inman for appellant.

(1) Instruction 5 was error. It denied plaintiff a recovery under the humanitarian doctrine if the automobile was driven on the track "directly in front of or in such close and dangerous proximity to the street cars" that the motormen could not stop or check the speed in time to avoid injury to plaintiff, and left out of consideration the duty of the motormen to exercise due care to look for vehicles approaching the track and on the first appearance of danger to stop or check the speed of the cars. It denies plaintiff a recovery although the motorman's prior negligence in failing to exercise due care in looking for vehicles approaching the track and to stop the car or check its speed was the cause of the injury. Cytron v. Transit Co., 205 Mo. 718; Smith v. Railroad, 282 S.W. 64; Schroeder v. Wells, 310 Mo. 654. (2) Instruction 6 was error. It imputed to plaintiff, a passenger, the negligence of the driver, and denied plaintiff a recovery under the humanitarian doctrine if the jury found that her injury was due to the negligence of the driver, although the jury may have further found that, notwithstanding the driver's negligence, the injury to plaintiff could have been avoided by the motorman if he had exercised due care in keeping a lookout for vehicles approaching the track and stopped or checked the speed of the car on the first appearance of danger. Bolin v. Railroad, 284 S.W. 145; Peppers v. Railroad, 295 S.W. 760; Gould v. Railroad, 290 S.W. 140. (3) The Vigilant Watch Ordinance was offered in evidence, and this ordinance declared that ordinary care on the part of the motorman at the time and place of the accident required him to keep a vigilant lookout for vehicles approaching the tracks, and on the first appearance of danger to stop the car in the shortest time and space possible, when plaintiff relied on the humanitarian doctrine for a recovery. Schroeder v. Wells, 310 Mo. 654; Hale v. Ry. Co., 287 Mo. 519. (4) The court erred in giving Instruction 2 at the request of the defendant. It withdrew from the consideration of the jury the assignment of negligence based on the Vigilant Watch Ordinance. Under the evidence in this case the plaintiff made a question for the jury on the issue of whether the motorman, by keeping a vigilant watch ahead for vehicles approaching the track, could have seen the automobile in a perilous situation in time to have stopped or checked the speed of the car and thereby avoided the accident. Grossman v. Wells, 282 S.W. 710. (5) The court erred in giving Instruction 3 at the request of the defendant. It withdrew from the consideration of the jury the assignment of negligence based on the speed ordinance. There was evidence that the car was run twenty-five miles an hour, and the jury could have said that excessive speed was the proximate cause of the accident. The ordinance speed was fifteen miles per hour. Unterlachner v. Wells, 278 S.W. 79.

T.E. Francis, James F. Green and Ernest A. Green for respondent.

(1) Neither plaintiff's petition nor the evidence offered in support thereof made a case under the humanitarian doctrine and the court would have been justified in taking the case from the jury. Banks v. Morris, 302 Mo. 254; State ex rel. v. Trimble, 300 Mo. 106; State ex rel. v. Reynolds, 233 S.W. 222. (2) There was no error in the instructions given on part of defendant withdrawing from the consideration of the jury certain alleged acts of negligence which had been abandoned by the plaintiff. Primmer v. Car Co., 299 S.W. 827; Unterlachner v. Wells, 278 S.W. 83; Schroeder v. Wells, 298 S.W. 807; Gould v. Railroad, 290 S.W. 139. (3) There was no error in giving to the jury defendant's given instruction numbered 5. Masterson v. Transit Co., 204 Mo. 521. (4) The trial court properly gave to the jury defendant's given instruction numbered 6. If the collision was solely due to the negligence of the driver of the automobile, this defendant was not liable. Under all of the evidence in the case the verdict was clearly for the right party and the judgment should not be reversed for mere technical error, if any, in instructions. Fritz v. Railroad, 243 Mo. 69; State v. Vickers, 209 Mo. 34; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railroad, 218 Mo. 561; Mockowik v. Railroad, 196 Mo. 568; Moore v. Railroad, 176 Mo. 545; Secs. 1276, 1513, R.S. 1919; Schuepbach v. Gas Co., 232 Mo. 611; Bradley v. Coffee Co., 213 Mo. 325.

RAGLAND, J.

Plaintiff sues to recover $30,000 for personal injuries sustained as the result of a collision between an automobile in which she was riding as a guest of the driver and a car or cars operated by defendant, which occurred at the intersection of Spring Avenue and Olive Street on September 30, 1923.

Spring Avenue runs north and south; Olive Street east and west; at the place of their intersection both are approximately thirty-six feet in width — from curb to curb. The center of Olive Street is occupied by two street-car tracks. The north track is used by westbound cars, and the south by eastbound. The distance from the north curb line of the street to the north rail of the north track is ten feet; and from that curb line to the north rail of the south track the distance is twenty feet. Spring Avenue north of Olive Street is called North Spring Avenue; south of Olive it is called South Spring Avenue. At Olive Street, South Spring Avenue is 177 feet east of North Spring Avenue. Consequently it is necessary for a traveler in passing from North Spring Avenue to South Spring Avenue to turn east at Olive Street and go a distance of 177 feet before continuing his journey south. An eastbound street car on Olive ascends a three per cent grade as it approaches Spring Avenue. Such were the outstanding physical characteristics of the place at which the automobile in question collided one after another with two street cars.

At the time heretofore mentioned the automobile in which plaintiff was riding was moving south on North Spring Avenue, approaching Olive Street, the occupants intending to cross Olive Street and proceed thence on south on South Spring Avenue. Plaintiff was seated on the right of the driver; four others sat on the rear seat. Their further adventure was described by plaintiff as follows:

"It was still light, though getting dark. When we reached Olive Street the automobile stopped with the front wheels about the curb line on north side of Olive and a little to the right of the center of Spring. At the time I saw a street car to the west on Olive moving east about 150 feet from us. The driver shifted gears and started up just about the time I saw the car. We just barely stopped. I didn't see any other car.

"At the time we started up, the street car was about 150 feet west of us. We turned east into Olive Street and the eastbound car hit the back of our machine... .

"I called the driver's attention to the approaching car, but don't remember the words I said. The substance was, `There is a car coming.' I didn't mention the direction, just said, `There is a street car coming.' I don't remember what he said. He then started up into the intersection. I said nothing more to him after the time I called his attention to the street car... .

"Our automobile went diagonally across the intersection at Olive, and turned east. Both our front wheels had gotten into the eastbound track just before we were struck by the car. I don't remember if we were talking when I first saw the street car. I know the driver saw the street car."

An eye-witness testified:

"I saw the automobile first, then the eastbound car. When I first saw the automobile it was right in the center of Spring. At that time both (street) cars were ringing their bells. I certainly think if the automobile had moved up it could have gotten out of the way. The front left corner of the street car hit the automobile right in back of the wheel on the right side."

At the time the automobile was struck by the eastbound car a westbound car was approaching, or had come to a stop at its usual stopping place, and the automobile was sandwiched between the two.

Other evidence tended to show that the eastbound car was approaching Spring Avenue at the rate of twenty-five miles an hour; that it did not check its speed until it was within ten feet of the automobile, at which time the brakes went on; and that after striking the...