Bongner v. Ziegenhein
| Decision Date | 07 May 1912 |
| Citation | 147 S.W. 182,165 Mo.App. 328 |
| Parties | ANTHONY A. BONGNER, Administrator, Respondent, v. HENRY ZIEGENHEIN, JR., Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. W. B. Homer, Judge.
AFFIRMED.
Judgment affirmed.
Schnurmacher & Rassieur for appellant.
(1) The demurrer to the evidence should have been sustained: (a) Because the proof shows that the accident was due to plaintiff's own contributory negligence. Clancy v Transit Co., 192 Mo. 615; McCreery v. Railways Co., 221 Mo. 18; Wheeler v. Wall, 137 S.W. 63; Newton v. Railroad, 132 S.W. 1195. (b) Because the proof shows that even if defendant was guilty of any or all of the acts of negligence alleged, defendant's conduct was not the proximate cause of plaintiff's injury. When plaintiff stepped from the street car, right in front of defendant's automobile, neither the sounding of the horn nor a more vigilant lookout on the part of the defendant, nor a lesser rate of speed could have saved him. But there was no proof whatever that the defendant was not exercising a vigilant lookout, or that he was driving his machine at an excessive or dangerous rate of speed. (2) The court erred in giving to the jury instruction No. 1, given at the request of plaintiff. The instruction is based upon the statutory duty which the driver of an automobile owes to pedestrians, and was evidently also intended to instruct the jury upon the "humanitarian doctrine," although some of the elements of that doctrine are lacking. The instruction is erroneous: (a) Because the averments of the petition did not justify the submission of that theory of negligence to the jury. Here specific acts of negligence were alleged and therefore the case should have been submitted to the jury only upon the specific negligence alleged. Beave v Transit Co., 212 Mo. 331; Kirkpatrick v. Railroad, 211 Mo. 68; Clancy v. Transit Co., 192 Mo. 615; Hartman v. Transit Co., 112 Mo.App. 445; Grout v. Railroad, 125 Mo.App. 552; Detrich v. Railroad, 143 Mo.App. 176; Hough v. Automobile Co., 146 Mo.App. 58. (b) Because there was no proof whatever showing how far the plaintiff was from the automobile when the defendant saw him or might have seen him jump from the car; nor was there any proof that the defendant could have stopped the machine in time to have averted the accident after he knew or could have known that plaintiff intended to get off the street car at the front platform and intended to cross the street in front of the automobile. Dey v. Railways Co., 140 Mo.App. 461; Pennell v. Railroad, 153 Mo.App. 566; Riggs v. Railroad, 216 Mo. 304; Degonia v. Railroad, 224 Mo. 564. (3) Instruction No. 1 is also erroneous because it purports to be complete in itself and authorizes a recovery upon a finding of the facts therein set forth, regardless of the other facts necessary under the law to entitle the plaintiff to a verdict; and it also ignores the defense of contributory negligence which had been pleaded and in support of which proof was offered. Ross v. Railroad, 132 Mo.App. 472; Shoe Co. v. Lisman, 85 Mo.App. 340. An instruction which purports to be complete in itself can not be pieced out by reference to other instructions offered. State v. Helton, 234 Mo. 559; Flucks v. Railroad, 143 Mo.App. 17; Redpath v. Lawrence, 42 Mo.App. 101. The reason being that if two instructions are conflicting it can not be told which one the jury took for its guidance. State v. Herrell, 97 Mo. 105; Shoe o. v. Lisman, supra. (4) Instruction No. 4 is an instruction upon an abstract proposition of law, which in no way affects plaintiff's right of recovery. It also improperly comments upon and emphasizes an immaterial fact in the case. Browning v. Railroad, 118 Mo.App. 449; Gibler v. Railroad, 129 Mo.App. 93. (5) Instruction No. 5 is erroneous because it imposes a higher duty upon the defendant than the law imposes. The "vigilant watch" duty, imposed by section 8517, Revised Statutes 1909, is applicable only to the situation referred to in that section. Under that section the automobilist "shall keep a vigilant watch for all vehicles, carriages, or wagons drawn by an animal or animals, and especially vehicles, carriages or wagons driven by women or children." As to pedestrians, the law imposed on the automobilist is "the highest degree of care that a very careful person would use," but the statute is silent as to a vigilant watch, and it was improper for the court, as a matter of law, to impose that duty aside from the duty imposed by the statute. All considerations entering into the question of what constitutes the "highest degree of care" should have been left to the jury. The instruction, however, was clearly drawn in accordance with section 8517, which has no application to the facts of this case.
Norman J. Sadler and Thomas B. Estep for respondent.
(1) The court did not err in refusing to give the demurrer to the evidence offered by the defendant at the close of plaintiff's case, nor at the close of the whole case. R. S. 1909, sec. 8523; Sapp v. Hunter, 134 Mo.App. 685; Hall v. Compton, 130 Mo.App. 675; McFern v. Gardner, 121 Mo.App. 1; State v. Swagerty, 203 Mo. 517; Weil v. Kruetzer, 24 L.R.A. (N.S.) 557; Gebhard v. Motor Co., 20 L.R.A. (N.S.) 232; Christy v. Elliott, 1 L.R.A. (N.S.) 215; Huddy on Automobiles, p. 108; Wyler v. Ratican, 150 Mo.App. 474. (2) Instruction No. 1, given for plaintiff, is practically a verbatim copy of section 8523, Revised Statutes 1909. An instruction ought not to be read as if it stood solitary and alone, independent of every other instruction. The instructions must be read together and considered as a whole. Instruction No. 2, given for plaintiff, is a paragraph of instruction No. 1. Flaherty v. Transit Co., 207 Mo. 334; Cornovski v. Transit Co., 207 Mo. 263; Garard v. Coal & Coke Co., 207 Mo. 242; Logan v. Railroad, 183 Mo. 582; Steele v. Ancient Order, 125 Mo.App. 680; Batten v. Modern Woodmen, 131 Mo.App. 381. (3) An omission in plaintiff's instructions may be cured or supplied by instructions given for defendant. Logan v. Railroad, 183 Mo. 608; Johnson v. Railroad, 173 Mo. 307; Chambers v. Chester, 172 Mo. 462; Campbell v. Lumber Co., 146 Mo.App. 681; Deschner v. Railroad, 200 Mo. 310; Devoy v. Transit Co., 192 Mo. 197; Moore v. Transit Co., 193 Mo. 411; Loftus v. Railroad, 220 Mo. 470; Wilkins v. Railroad, 101 Mo. 93; Sapp v. Hunter, 134 Mo.App. 685; Dye v. Railroad, 135 Mo.App. 254; Fillingham v. Transit Co., 102 Mo.App. 573. (4) A pedestrian is not bound, as a matter of law, when lawfully using the public highways, to be continually looking or listening to ascertain if vehicles or automobiles are approaching. He is only required to use ordinary care. Groom v. Kavanaugh, 97 Mo.App. 371; Kenny v. Railroad, 105 Mo. 270; Gebard v. Motor Co., 20 L.R.A. (N.S.) 232; Brewster v. Barker, 113 N.Y.S. 1026.
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 southbound 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 southbound car, on which Bongner was a passenger, moved on the track farther west, and between the car and the curb, the space was from twelve to fifteen 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 upon by the machine. He did not see the automobile until the collision occurred. The evidence tends to prove that the automobile was running rather slowly--say about four miles per hour--at the time, and that no horn or other warning of its approach was sounded until the scream of a lady who was a passenger therein, and this occurred about simultaneously with the collision.
Though an argument is made to the contrary in support of the judgment, it is obvious that the petition lays specific charges of negligence against defendant. But, as we understand it, there are but two of these. It is averred therein that defendant neglected and failed to keep a sharp diligent and careful watch and lookout...
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