Causey v. Witting

• Decision Date: 24 November 1928
• Docket Number: No. 26700.,26700.
• Citation: 11 S.W.2d 11
• Parties: LENA CAUSEY, Appellant, v. JOHN WITTIG.
• Court: Missouri Supreme Court

11 S.W.2d 11

LENA CAUSEY, Appellant, v. JOHN WITTIG.

No. 26700.

Supreme Court of Missouri. Court en Banc.

November 24, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. George E. Mix, Judge.

REVERSED AND REMANDED.

Strubinger & Foster and Percy Werner for appellant.

Instruction 5 given by the court on behalf of defendant was fatally erroneous and prejudicial and must lead to a reversal of the judgment below. (1) It ignored prior negligence — that is to say, it ignored the duty of the defendant, the driver of the car, to look ahead and laterally ahead, and to exercise the highest degree of care to discover a pedestrian crossing the street in front of him, and in failing to check the speed of his automobile after he could have seen deceased by the exercise of the highest degree of care, and have warned the deceased. Hornbuckle v. McCarthy, 243 S.W. 327; Goodwin v. Eugas, 290 Mo. 673; Abramowitz v. United Rys. Co., 214 S.W. 119; Stewart v. Street Ry. Co., 188 S.W. 198; Turnbow v. Dunham, 272 Mo. 53; Saulan v. Railway Co., 199 S.W. 714; Nabe v. Schnellman, 254 S.W. 731; Dignum v. Weaver, 204 S.W. 566. (2) The instruction is one on contributory negligence and had no place in a case which goes to the jury on the "last chance" or humanitarian doctrine. (a) The reference to the "moving street car" was improper. (b) The use of the word "suddenly" was misleading and improper. (c) It is misleading and erroneous in summarizing, or in attempting to summarize, the evidence favorable to one side of the case. Aaron v. Hirschfield, 89 Ill. App. 205; Mitchell v. Ehmet, 65 S.W. 835; Schulz v. Smercina, 1 S.W. (2d) 113.

Brackman, Hausner & Versen for respondent.

Instructions must be read as a whole and should be considered in the light of the evidence and the issues and, even though erroneous, judgment will be affirmed unless the error is clearly prejudicial. Patterson v. Evans, 254 Mo. 293; Andrew v. Linebaugh, 260 Mo. 623. Under the facts embraced in Instruction 5 the defendant could not have been guilty of any other prior negligence. An operator of an automobile is only charged with the duty of looking ahead and laterally ahead and is not required to look behind him. Hornbuckle v. McCarthy, 243 S.W. 327; Goodwin v. Eugas, 290 Mo. 673. The instruction submitted the theory of the defendant, which was the direct opposite to the theory of the plaintiff, as to the manner in which the accident happened. It is not error to submit to the jury the theory of the defendant if other instructions cover the plaintiff's idea of the evidence, especially where, under such theory, plaintiff was not entitled to recover. State ex rel. Robertson v. Hope, 102 Mo. 40; Burlington First Natl. Bank v. Hatch, 98 Mo. 376; Dougherty v. Railroad Co., 97 Mo. 647; Owens v. Ry. Co., 95 Mo. 169. If appellant means by "prior negligence" such charges of negligence as were pleaded in the petition but not submitted by instructions, then the point also is untenable, because all assignments of negligence were abandoned by plaintiff except the humanitarian doctrine. When a party fails to request instructions on any charge of negligence in the petition, such assignment drops out of the case. Keele v. Railroad Co., 258 Mo. 62; Nahorski v. Elec. Terminal Co., 274 S.W. 1025.

HENWOOD, C.

Lena Causey sued John Wittig, in the Circuit Court of the City of St. Louis, for damages in the sum of $10,000, alleging that the death of her husband, Charles Causey, resulted from injuries received in a collision with defendant's automobile, while the same was being driven by defendant in a negligent manner. The jury returned a verdict for defendant, and from the judgment rendered accordingly, plaintiff has perfected this appeal.

The petition contains seven different specifications of negligence, but the plaintiff's case was submitted to the jury on the humanitarian doctrine only. The answer is a general denial, coupled with a special plea that the collision was caused by the negligence of deceased in failing to look and to listen for vehicles traveling along Tower Grove Avenue before attempting to cross said avenue from the west to the east side thereof. The reply is a general denial of the affirmative allegations of the answer.

At the time in question, Charles Causey was forty-eight years of age, and lived at Valley Park, a suburb of St. Louis on the west. He was employed as a receiving clerk by the General Motors Company in the north section of St. Louis and, in going to and from his work, usually rode a Frisco train between Valley Park and Tower Grove, and a street car between Tower Grove and his place of employment. On the evening of October 22, 1923, about 6:30 or 6:45, he got off of a street car on Tower Grove Avenue in the vicinity of the Tower Grove station of the Frisco railroad and, while crossing from the west side to the east side of Tower Grove Avenue, collided with defendant's automobile. He suffered a severe fracture of his skull in the mastoid region, which resulted in his death five days later. At this point, Tower Grove Avenue was about sixty feet wide, and in the middle portion thereof were double street-car tracks, known as the southbound and northbound tracks. Defendant was driving his Cole Eight Sedan, 1917 Model, north on Tower Grove Avenue, from fifteen to forty feet north of Folsom Avenue, and "astraddle" or near the east rail of the northbound street-car tracks, when the collision occurred. When picked up, Causey was lying on his back across the east rail of the northbound tracks, with his feet extending toward the east. His face and hands were not bruised or wounded, and no injury was referred to by the witnesses at the trial, except the facture of his skull. It was dark and the street lights and lights on the street cars were turned on. There was an up-grade toward the south on Tower Grove Avenue at the point of the collision, variously estimated by the witnesses at 3½ to 50 per cent. The photograph of the street (plaintiff's Ex. A) would indicate that the assistant city engineer's estimate of 3½ per cent was approximately correct. As to how the collision occurred, there was a sharp conflict in the evidence.

Lowell Sewell, nineteen years of age, testified, for the plaintiff, as follows: "I was on the east side of Tower Grove Avenue, walking south. I noticed this man was out in the center of the two tracks and Mr. Wittig was about twenty or twenty-five feet south and this man taken two or three steps on and Mr. Wittig hit him. Mr. Wittig was twenty or twenty-five feet south of the man when I first saw the man. At that time the man was out in the middle of the street in the middle of the two tracks, and the automobile which struck him was coming north. Before the accident I didn't hear any horn sounded. The weather was dry. At the point where the accident happened, Tower Grove is up-grade, going north. The accident happened about fifteen or twenty feet on this side, north of Folsom and Tower Grove. When the man was struck by the automobile he fell face downward. It looked to me like the automobile struck him about the left front fender. It was the front end of the car. In my best judgment this automobile, when I first saw it, was going about twenty or twenty-two miles an hour. The automobile didn't slacken its speed before it struck this man, that I noticed. I didn't notice any slackening of the speed." On cross-examination, he said: "When the man was hit I didn't notice which way he fell. I think the left front fender hit him. It looked to me like that. I testified in the former trial that I saw the man hit by the front end of the car. I testified he was hit about at the front radiator — about at the crank. It looked to me it was the left fender in front. He was hit in the front somewhere — I couldn't say where it was — it might have been near the crank or the fender, I don't know. I won't say whether it was the crank or the fender. I couldn't say for sure where Wittig's automobile was when it struck Causey, with reference to the street car tracks, but I think it was near the east rail, astraddle, or pretty close." Sewell was the only witness for the plaintiff, who said he saw Causey and the automobile at the time and immediately before the collision.

One of Sewell's companions, Crawford Wright seventeen years of age, testified that Sewell said, "Look," but when he first saw the automobile it was "fifteen or twenty feet past the man" and going "about ten or fifteen miles an hour;" and that the automobile "finally came to a stop about fifty or sixty feet north of the man."

Everett Joseph Reece, testifying for plaintiff, as to appearances after the accident, among other things, said: "When I got there the defendant's automobile was about fifty feet north of the man, and right back of the man was a northbound street car that had stopped, and just to the west of the man was a southbound street car. It was stopped. On cross-examination, he estimated Causey's height at "about five feet seven or eight inches."

Earl H. Sparr, superintendent of Mendenhall Motor Company and an experienced automobile driver, testified that, at the request of plaintiff's counsel, he made stop tests with a Cole Eight automobile running north on Tower Grove Avenue at or near the point in question, when the street was dry, and that a safe stop could be made at twenty to twenty-two miles per hour within thirteen feet and ten inches; at fifteen miles per hour within eleven feet; and at ten miles per hour within six feet.

On behalf of the defendant, Warren Olsen, fifteen years old, testified: "The street car was coming down from the north — it made a turn into Tower Grove and was going south on Tower Grove over the viaduct — that was the southbound car track. Mr. Causey came from the west, I saw him run in front of this street car. The street car was lighted — the front lights lit. The automobile was just about up to Folsom. The night of this accident this man ...