Bongner v. Ziegenhein

• Decision Date: 07 May 1912
• Citation: 147 S.W. 182
• Parties: BONGNER v. ZIEGENHEIN.
• Court: Missouri Court of Appeals

147 S.W. 182

BONGNER v. ZIEGENHEIN.

St. Louis Court of Appeals. Missouri.

May 7, 1912.

1. MUNICIPAL CORPORATIONS (§ 706)— STREETS—AUTOMOBILE ACCIDENT—PLEADING —ALLEGATIONS OF NEGLIGENCE.

In an action for injuries to a pedestrian as he alighted from a street car by being struck by defendant's automobile, an allegation that defendant failed to keep a sharp, diligent, and careful lookout for plaintiff, and failed to sound a horn or bell or give plaintiff warning, did not charge two separate acts of negligence, but one compound negligent act only, to wit, the omission to make observation for plaintiff's safety and to warn him of the approach of the machine.

2. MUNICIPAL CORPORATIONS (§ 705) — STREETS—AUTOMOBILE ACCIDENT—CARE REQUIRED OF DRIVER—"HIGHEST DEGREE OF CARE."

Rev. St. 1909, § 8523, provides that a person operating an automobile on a public highway shall use the highest degree of care that a very careful person would use under like circumstances to prevent injury to persons on the highway. Held, that the measure of care is to be determined according to the circumstances of the particular case; the statute requiring that the driver guard against all movement of persons likely to take place in the highway which a prudent man exercising high care

should anticipate as likely to occur within the rationale of human experience.

3. MUNICIPAL CORPORATIONS (§ 705))—USE OF STREETS—AUTOMOBILE ACCIDENT—DUTY TO WARN.

Where an automobile was being driven along a street following alongside of a street car, and the driver had twice slowed up to avoid passengers, he was bound to anticipate as he approached a third street crossing that passengers would take their exit from the forward as well as the rear end of the car, and it was therefore his duty to keep a diligent lookout for persons alighting from the car and to give warning by sounding his horn, not only as the passengers alighted, but as he observed the car slowing up for that purpose.

4. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREETS—AUTOMOBILE ACCIDENT—NEGLIGENCE —QUESTION FOR JURY.

In an action for injuries to a pedestrian just after alighting from a street car by being struck by defendant's automobile traveling in the same direction, evidence held to require submission to the jury of defendant's negligence in failing to keep a diligent lookout for plaintiff's safety and warn him of the approach of the machine and in operating the automobile at an immoderate rate of speed.

5. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREETS—AUTOMOBILE ACCIDENT—EVIDENCE.

The fact that no alarm was sounded from defendant's machine, and that it ran 15 feet before it could be stopped after colliding with plaintiff, and then only by veering into the curb, warranted an inference that defendant omitted to diligently look out for the stopping of the street car and the exit of passengers, and that he propelled the machine at an unreasonable rate of speed.

6. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—AUTOMOBILE ACCIDENT—CARE REQUIRED.

The highest degree of care required by Rev. St. 1909, § 8523, in the operation of an automobile, requires the operator of such machine in a public street, where it is known that a street car is slowing down to discharge passengers, to both make such observations as will enable him to ascertain the presence of passengers alighting and reduce the speed of the machine so that injury may be averted by avoiding an actual collision.

7. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—AUTOMOBILES—INJURY TO PEDESTRIAN.

While automobiles enjoy the same right to the highway as is possessed by a pedestrian, the measure of duty imposed on one operating such a machine is viewed as commensurate with the risk entailed through the probable dangers attending the particular situation.

8. MUNICIPAL CORPORATIONS (§ 705)—USE OF STREETS—PEDESTRIANS—DUTY TO LOOK AND LISTEN.

The duty to look and listen imposed by one approaching a railroad crossing does not apply to one about to cross a city street.

9. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREETS—INJURIES TO PEDESTRIANS— CONTRIBUTORY NEGLIGENCE.

Where a pedestrian is injured in a city street by a conveyance which may occupy one portion of a street at one time and another portion at another, and the injured person is not forwarned of the danger, the matter of his contributory negligence, notwithstanding his failure to look and listen, is generally for the jury.

10. MUNICIPAL CORPORATIONS (§ 706)—USE OF STREETS—AUTOMOBILE COLLISION—CONTRIBUTORY NEGLIGENCE.

Plaintiff alighted from the front end of a street car at the usual stopping place, looked directly ahead of him to the sidewalk, but did not look up or down the street. He took three steps toward the walk and was struck by defendant's automobile which, without warning, had been following by the side of the street car at an improper rate of speed. There was no evidence that the street was much used or frequented by automobiles or other conveyances, and it appeared that plaintiff made observations in both directions immediately before leaving the car and did not see the automobile. Held, that he was not negligent as a matter of law.

11. TRIAL (§ 296)—INSTRUCTIONS—FORM— SPECIFIC ACTS OF NEGLIGENCE—CURING ERROR.

The court charged that if plaintiff got off a street car at its regular stopping place, and, exercising ordinary care, started to walk toward the curb, and that defendant was driving an automobile on the avenue and the machine struck plaintiff and caused him to be injured, and defendant by the exercise of the highest degree of care that a very careful person would use under like and similar circumstances could have prevented and averted the injury, the jury should find for plaintiff. Held that, while such instruction was erroneous as not limiting plaintiff's right to recover to the specific acts of negligence alleged, it was cured by an instruction given at defendant's request limiting plaintiff's recovery to defendant's negligence in operating the automobile at a high and dangerous rate of speed without sounding the horn or giving plaintiff warning of its approach.

12. MUNICIPAL CORPORATIONS (§ 706) — STREETS—AUTOMOBILE ACCIDENT—INSTRUCTIONS —SHARP LOOKOUT.

Under Rev. St. 1909, § 8523, providing that a person operating an automobile on a public highway shall use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons on the highway, an instruction that the operator of an automobile is bound to keep a sharp and diligent lookout for plaintiff was not objectionable as imposing too high a degree of care.

13. APPEAL AND ERROR (§ 1066)—INSTRUCTIONS —HARMLESS ERROR.

An instruction in an action for injuries in an automobile accident that plaintiff was entitled to leave the street car from which he alighted from the front platform thereof, though objectionable as abstract, was harmless under Rev. St. 1909, § 2082, forbidding the reversal of a judgment except for error materially affecting the merits and against the rights of the appellant.

14. TRIAL (§ 296)—INSTRUCTIONS—OMISSION OF ISSUE.

That an instruction authorizing recovery for negligence omits to require the jury to find that the injured party was careful for his own safety is not reversible error, when it appears that such question was properly submitted in other instructions, under the rule that the charge must be considered as a whole.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by Julius Bongner, revived after his death in the name of Anthony A. Bongner, administrator of his estate, against Henry Ziegenhein, Jr. Judgment for plaintiff, and defendant appeals. Affirmed.

Schnurmacher & Rassieur, of St. Louis, for appellant. Thomas B. Estep and Norman J. Sadler, both of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued on account of personal injuries received through defendant's negligence in operating his automobile. Plaintiff recovered, and defendant prosecutes the appeal. Since the appeal was perfected, the plaintiff departed this life, and the proceedings have been, and now stand, revived in this court in the name of his administrator.

Plaintiff, Julius Bongner, now deceased, was a passenger on a south-bound street car on Grand avenue, destined to Magnolia avenue, in the city of St. Louis. As the street car halted at the usual stopping place in Grand avenue at its intersection with Magnolia avenue, decedent stepped off of its forward platform and took about three steps toward the pavement when he was run upon and injured by an automobile driven by defendant. There are two street car tracks in Grand avenue, side by side. The south-bound car on which Bongner was a passenger moved on the track farther west, and between the car and the curb the space was from 12 to 15 feet. It appears defendant had been driving south following the street car for several blocks before he reached Magnolia avenue, and at the crossing of both Shenandoah avenue and Sidney street, immediately before, he stopped his automobile while passengers alighted from the car, but the evidence tends to prove he did not do so at Magnolia avenue. However, it does not appear that Bongner had any knowledge of the automobile or of its prior stops at the streets mentioned. When the car stopped at the usual stopping place at Grand and Magnolia avenues, Bongner took his exit therefrom by means of the foremost platform. Though Bongner testified that he looked both north and south on Grand avenue immediately before leaving the car and observed no conveyance, he said, too, that he looked directly west only, or the way he was going, as he got off the car and thereafter. In other words, after stepping from the car, he made no observations either north or south on Grand avenue for the approach of an automobile, and started to walk directly west to the curb, but, upon taking the third step, he heard a lady scream and was run...