Bode v. Wells
| Decision Date | 27 March 1929 |
| Citation | 15 S.W.2d 335,322 Mo. 386 |
| Parties | Amelia Bode v. Rolla Wells, Receiver for United Railways Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.
Affirmed.
T E. Francis, J. F. Evans, B. G. Carpenter, and Curlee, Nortoni & Teasdale for appellant.
(1) The trial court erred in failing and refusing to give the instruction in the nature of a demurrer to the evidence. (a) Plaintiff testified that, as she approached the two tracks and crossed over the first track to a point where she was struck on the second track, she had a full view of the street car from a point about forty feet east of west rail where struck; that the car was approaching her at a high rate of speed, and that she continued to watch it at all times and noted that it did not slacken its speed. Her subsequent conduct in going immediately in front of this rapidly approaching street car, with full knowledge of her danger unquestionably stamps her conduct as contributory negligence as a matter of law. Laun v. Railroad, 216 Mo. 580; State ex rel. v. Reynolds, 233 S.W. 222; Boyd v. Ry. Co., 105 Mo. 371; Mockowik v. Railroad, 196 Mo. 550; Huggart v. Railroad, 134 Mo. 679; Kelsay v. Ry. Co., 129 Mo. 374; Reno v. Railroad, 180 Mo. 469; Stotler v. Railroad, 204 Mo. 619; Hutchinson v. Mo. Pac. Railroad, 195 Mo. 546; Kelsay v. Mo. Pac. Railroad, 129 Mo. 362; Voelkers Products Co. v. United Rys. Co., 185 Mo.App. 310. (b) Plaintiff was further barred from recovery under that assignment of negligence charging the defendant with failure to ring the gong or give warning of the approach of its street car, for the reason that she testified she was fully cognizant of the approach of the car at all times, and, therefore, the failure to give her other warning of its approach was not the proximate cause of the collision and could not legally be a predicate of recovery. Murray v. Trans. Co., 176 Mo. 183; Hutchinson v. Mo. Pac. Railroad, 195 Mo. 546; Mockowik v. Railroad, 196 Mo. 550; Young v. Railroad, 227 Mo. 307. (c) The testimony of plaintiff's witnesses shows conclusively that when plaintiff entered the danger zone the street car was then not more than fifty feet away from her and was traveling at a rate of twenty-five miles per hour. The only testimony adduced to show within what distance the car could have been stopped, traveling at that rate of speed, allowed seventy feet as the minimum distance required, and such being true, she cannot recover. Reno v. St. L. Sub. Ry. Co., 180 Mo. 488; State ex rel. v. Reynolds, 233 S.W. 222; Rowe v. Rys. Co., 247 S.W. 446; Boyd v. Wabash, 105 Mo. 371; Mockowik v. Railroad, 196 Mo. 550; Boring v. Met. St. Ry. Co., 194 Mo. 541; Kinlen v. Railroad, 216 Mo. 158; Pope v. Wabash, 242 Mo. 239; Reeves v. Railroad, 251 Mo. 177; Keele v. Railroad, 258 Mo. 78; Lackey v. United Rys. Co., 288 Mo. 120; Burge v. Wabash, 244 Mo. 76. (d) The hypothetical question propounded to plaintiff's speed and stopping expert, Mr. Smith, omitted the vital elements of the condition of the track, number of passengers on the car and the stopping "with safety to passengers." Furthermore, the so-called expert had never had any experience in operating street cars with trailers attached. An opinion founded on a question which does not include these essential facts is without probative force and does not aid the court or jury in determining whether or not the car could have been stopped within a given distance. Burge v. Railroad, 244 Mo. 76; Toomey v. Wells, 276 S.W. 68; Fleming v. Railroad, 263 Mo. 180; Heinzle v. Railway, 182 Mo. 555; Ruschenberg v. Railroad, 161 Mo. 81; Senn v. Railroad, 180 Mo. 151. (2) Defendant's demurrer to the evidence should have been given because the last clear chance doctrine does not obtain nor apply where both parties are actively and contemporaneously negligent until it is too late to prevent the collision, for in such circumstances plaintiff's negligence is not remote but rather is active, concurrent, therefore proximate in the chain of causation, so as to be regarded in fact and in law as concurrent in point of time and place. Watson v. Railroad, 133 Mo. 246; Reeves v. K. C. Ry. Co., 251 Mo. 169; Pope v. Wabash, 242 Mo. 232; Moore v. Lindell Ry. Co., 176 Mo. 528; Beal v. Ry. Co., 256 S.W. 736; Ross v. Met. St. Ry. Co., 132 Mo.App. 472; Kinlen v. Met. St. Ry. Co., 216 Mo. 163; Walker v. Wabash, 193 Mo. 453; Mockowik v. Railroad, 196 Mo. 570; Nellis on Street Railroads, 383; Everett v. Elec. Ry. Co., 42 P. 219; Cooley on Torts (2 Ed.) 812; 7 Am. & Eng. Ency. (2 Ed.) 385; Karte v. Mfg. Co., 247 S.W. 423. (3) The trial court erred in admitting the testimony of Dr. Lewis to the effect that plaintiff's mental capacity had been reduced, for the reason that no such allegation of injury was incorporated in the petition. Hall v. Coal Co., 260 Mo. 351; Shafer v. Harvey, 192 Mo.App. 502; Price v. St. Ry. Co., 220 Mo. 435.
A. A. Alexander and Charles E. Morrow for respondent.
(1) There was a plat offered in evidence by plaintiff, drawn to scale, which showed the surroundings at the place of accident and the relative positions of the street crossing, the railway tracks, houses, concrete platform and other objects, and the distance from one to another. Also two photographs were offered in evidence. The plaintiff was unable to give distances in feet, and this plat and these photographs were used by both parties in her examination as a witness, and she designed certain points on this plat and these photographs where she was and where the street car was at different times. This plat and these photographs were not preserved by the defendant in its bill of exceptions, but the record here shows that they were offered in evidence and referred to by the witnesses. They are not part of the record and are not before this court, and error cannot be predicated on a refusal of the court to sustain a demurrer to the evidence, or as to the action of the court in giving instructions, because all the material evidence is not before this court. Craven v. Midland Mining Co., 228 S.W. 515; Johnson v. Electric Co., 232 S.W. 1094; Higgins v. Pulley Co., 240 S.W. 252; Steckdaub v. Wilhite, 211 S.W. 915; Nash v. Brick Co., 109 Mo.App. 600; Rutledge v. Farr, 95 Mo.App. 265; Deering & Co. v. Hannah, 93 Mo.App. 618; Story v. Patton, 61 Mo.App. 12; Meriwether v. Howe, 48 Mo.App. 148. (2) Plaintiff was not guilty of contributory negligence as a matter of law. She had the same right to cross the tracks that defendant had to cross the street. When she went upon the tracks upon which the street car was running, the car was more than seventy-five feet away, and she was motioning to the motorman to stop the car so that she could take passage thereon. While she observed that it was running faster than cars usually ran, she believed she had time to cross the track in safety. Sugarwater v. Fleming (Mo.), 293 S.W. 114; Strauchon v. Met. St. Ry. Co., 232 Mo. 587; Cihla v. U. Rys. Co., 221 S.W. 428; Harrington v. Dunham, 273 Mo. 414; Irwin v. Railroad, 196 Mo.App. 666. (3) The evidence justified the submission of the case to the jury on the humanitarian doctrine. The plaintiff is not precluded from recovery under the humanitarian doctrine, because she knew the street car was coming when she went upon the track. Banks v. Morris & Co., 302 Mo. 254. (4) The evidence shows that the defendant ran the street car at a rate of speed of twenty-five miles an hour, in violation of the ordinance; and negligently ran the street car at a greater rate of speed than was reasonable under the circumstances, approaching a regular stopping place, and by the same, and across a public street, when the plaintiff was crossing the tracks in said street, and signalling the motorman of the street car to stop in order to take passage on the street car. If the defendant thereby put himself in a position so that the street car could not be stopped, the defendant is still liable. Sullivan v. Railroad, 117 Mo. 214; Moore v. Transit Co., 194 Mo. 1; Mason v. U. Rys. Co., 246 S.W. 325; Ambrowitz v. United Rys. Co., 214 S.W. 119; Smith v. Railroad, 282 S.W. 62; Goben v. Railroad, 206 Mo.App. 5; Murrell v. Railroad, 105 Mo.App. 88. (5) The defendant stood upon his demurrer to the evidence and did not call as a witness his motorman who was in charge of and operating the street car, who had superior knowledge as to what he actually saw, the rate of speed of the car and other matters connected with the accident. The failure to call this witness raised a strong presumption against the defendant and authorized the jury to infer that the evidence of the motorman would be unfavorable to the defendant. State ex rel. v. Trimble, 260 S.W. 1003; Reyburn v. Railroad, 187 Mo. 565; Murrell v. Railroad, 279 Mo. 92; McCord v. Schaff, 279 Mo. 558; McClanahan v. Railroad, 147 Mo.App. 386; Griggs v. Railway Co., 228 S.W. 510. (6) The court did not err in admitting the evidence of Dr. Lewis that plaintiff's mental capacity since the accident was not what it was before. Rosenweig v. Wells, 308 Mo. 617. (7) The witness Smith was qualified to testify as an expert as to the distance in which the street car could have been stopped. Phillips v. Ry. Co., 226 S.W. 867. The defendant did not object to the hypothetical question, put to the witness Smith, on the ground that any necessary elements were omitted therefrom, but on the sole ground that the witness was not qualified to testify. Phillips v. Ry. Co., 226 S.W. 867.
The plaintiff sues for damages on account of personal injuries alleged to have been inflicted through the negligence of the defendant. There was a trial to a jury resulting in a verdict in favor of the plaintiff in the sum of $ 8000. From the judgment rendered...
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