Christiansen v. St. Louis Pub. Serv. Co.

• Decision Date: 03 August 1933
• Docket Number: No. 30732.,30732.
• Citation: 62 S.W.2d 828
• Parties: BERTHA CHRISTIANSEN v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and WILLIAM SHELTON, ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

62 S.W.2d 828

BERTHA CHRISTIANSEN v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, and WILLIAM SHELTON, ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 30732.

Supreme Court of Missouri, Division One.

August 3, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

AFFIRMED (on condition).

T.E. Francis, B.G. Carpenter and Allen, Moser & Marsalek for appellant.

(1) The evidence does not suffice to show that the car was operated at a negligent rate of speed. There was neither pleading nor proof of the violation of any speed ordinance. Negligent speed at common law is dependent upon the particular surrounding facts and circumstances. Theobald v. Transit Co., 191 Mo. 432; Montague v. Railway Co., 305 Mo. 280; Heinzle v. Railway, 182 Mo. 555; Petty v. Railroad Co., 179 Mo. 666; Brandt v. United Rys. Co., 153 Mo. App. 16. The evidence did not suffice to show that excessive speed of the street car, if any, proximately caused or contributed to cause the injury. In order to recover on the ground of alleged excessive speed of the car it was incumbent upon the plaintiff to adduce evidence tending to show that the casualty would not have occurred except for the operation of the car at a speed negligent at common law under the circumstances. Wood v. Wells, 270 S.W. 332; De Moss v. K.C. Rys. Co., 296 Mo. 526; Battles v. United Rys. Co., 178 Mo. App. 596; King v. Railroad, 211 Mo. 1; Schmidt v. Transit Co., 140 Mo. App. 187; Decker v. Railroad, 187 Mo. App. 210; McGee v. Railroad, 214 Mo. 530; Bluedorn v. Railway Co., 121 Mo. 258. (2) There was no evidence of negligence with respect to the control of the car. Under the circumstances appellant was not required to operate the car so slowly as to enable it to be stopped within a very few feet. Theobald v. Transit Co., 191 Mo. 432; Day v. Citizens Railway Co., 81 Mo. App. 486; Molyneux v. Railway Co., 81 Mo. App. 25. (3) There was no evidence to sustain the assignments of negligence predicated on the alleged failure to stop the car or slacken its speed. (a) There was no duty on the part of the motorman to begin to stop or slacken the speed of the car until he observed, or by the exercise of ordinary care could have observed, that the defendant Shelton was intent upon crossing or putting his automobile in a position where a casualty might occur. Lackey v. United Rys. Co., 288 Mo. 143; Petty v. Railway Co., 179 Mo. 666; Markowitz v. St. Ry. Co., 186 Mo. 350; Legg v. Met. St. Ry. Co., 154 Mo. App. 290; Beal v. Railway Co., 256 S.W. 733. (b) The motorman had the right to assume that Shelton would exercise the high degree of care which the law required of him, and would seasonably stop his automobile until something appeared to indicate the contrary. Jordan v. St. Joseph Ry. Co., 38 S.W. (2d) 1042; Markowitz v. Met. St. Ry. Co., 186 Mo. 350; Schmidt v. Railroad, 191 Mo. 233; Guyer v. Railroad, 174 Mo. 350; Beal v. Railroad Co., 256 S.W. 736. (4) Since the undisputed evidence conclusively showed that defendant Shelton, as well as plaintiff, saw the street car when it left the east side of Twelfth Street, failure, if any, on the part of the motorman to sound a gong or give other warning of its approach could not have proximately contributed to cause the casualty. Highfill v. Wells, 16 S.W. (2d) 102; Peterson v. United Rys. Co., 270 Mo. 67. (5) There was no evidence at all to sustain the assignment of negligence pleaded in the eleventh paragraph of the petition predicated upon the alleged violation of the last-chance rule. Banks v. Morris, 302 Mo. 254; Lackey v. United Rys. Co., 288 Mo. 120; Sisk v. Const. Co., supra, 316 Mo. 1143. It is well settled that it is prejudicial error to assume, in an instruction, a material controverted fact. Barr v. Nafziger Baking Co., 41 S.W. (2d) 563; Schimmelpfenning v. Wells, 24 S.W. (2d) 161; Shephard v. Century Elec. Co., 299 S.W. 92; Ganey v. Kansas City, 259 Mo. 654; Reel v. Consolidated Inv. Co., 236 S.W. 47; Gott v. K.C. Rys. Co., 222 S.W. 827; Glaser v. Rothschild, 221 Mo. 180; Rice v. Jefferson City Bridge & Transit Co., 216 S.W. 751; Zini v. Term. Ry. Assn., 235 S.W. 86; Miller v. Busey, 186 S.W. 458; Boland v. Railway Co., 284 S.W. 144; Barnes v. Baker, 299 S.W. 83; Gebhardt v. Am. Car & Foundry Co., 296 S.W. 448, (a) The giving of this instruction was error, highly prejudicial to appellant, for the reason that the effect of it was to charge the jury that appellant's motorman was under an absolute duty to move the car at such speed and to keep it under such control as to avoid a collision with the automobile after the latter suddenly turned into Olive Street, if the motorman, at any time, saw or could have seen the automobile "ahead of" the car. The effect of the instruction was to erroneously make appellant an insurer. Hunter v. Am. Brake Co., 231 S.W. 659; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W. (2d) 482; Moran v. Railroad, 255 S.W. 335; Schneider v. Hawks, 211 S.W. 682; Boland v. Railway Co., 284 S.W. 144; Weddle v. Tarkio Electric & Water Co., 230 S.W. 390. (b) The giving of Instruction I was prejudicial error, for the further reason that there was no evidence at all to warrant a recovery upon the theory upon which the case was thereby submitted. There was no evidence tending to show that after the automobile suddenly turned into Olive Street — assuming that it ever came into a position "ahead of" the street car — the motorman, in operating the car, by the exercise of ordinary care, or even the highest degree of care, could have so moved the car or controlled it as to avoid the casualty. The record is devoid of any evidence warranting a recovery upon such theory. The giving of an instruction unsupported by the evidence or broader than the evidence is prejudicial error. Gandy v. Railway Co., 44 S.W. (2d) 638; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1193; Althage v. People's Motorbus Co., 8 S.W. (2d) 924; Kuhlman v. Water, Light & Transit Co., 307 Mo. 607; State ex rel. Goessling v. Daues, 314 Mo. 287; Dixon v. Construction Co., 318 Mo. 63; Rettlia v. Salomon, 308 Mo. 673; Esstman v. United Rys. Co., 216 S.W. 526; Champion Coated Paper Co. v. Shilkee, 237 S.W. 111; Krelitz v. Calcaterra, 33 S.W. (2d) 911; Degonia v. Railway Co., 224 Mo. 564; Doody v. Woolen Mills Co., 230 S.W. 379; Allison v. Dittbrenner, 50 S.W. (2d) 203. To warrant a recovery upon any such theory it was necessary to show more than a mere possibility that the casualty might have been avoided. Goodson v. Schwandt, 318 Mo. 666; Sisk v. Construction Co., 316 Mo. 1148; Markowitz v. Railroad, 186 Mo. 359. (c) This instruction is also broader than the petition; for the petition, while containing various charges of specific negligence on the part of appellant, does not charge that after the automobile turned into Olive Street the operators thereof saw, or by the exercise of ordinary care could have seen it "ahead of" the street car and thereafter negligently failed to move the car at such rate of speed or to keep it under such control as to avoid a collision with said automobile, as hypothesized by this instruction. No such specific negligence is alleged. The giving of an instruction that broadens the issues made by the pleadings is prejudicial error. Gandy v. Railway Co., 44 S.W. (2d) 638; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1193; Talbert v. Ry. Co., 314 Mo. 368; State ex rel. Goessling v. Daues, 314 Mo. 287; Kuhlman v. Water, Light & Transit Co., 307 Mo. 635; Degonia v. Railroad, 224 Mo. 589; State ex rel. v. Ellison, 270 Mo. 645.

Lee, Fricke & Lee and John P. Leahy for respondent.

(1) The plaintiff was standing upon the sidewalk, where she had a right to be, and at the usual place where street cars stopped on their way west. She had signaled the motorman to stop to receive her, and the motorman saw her when she gave the signal. She was utterly without negligence on her part, and was moving toward the car when she was struck by the automobile. A prima facie case was, therefore, made by plaintiff as against the street car company. O'Gara v. Transit Co., 204 Mo. 724. (2) The motorman, having seen the automobile approaching the intersection of Twelfth Boulevard with Olive Street at a speed of from thirty to thirty-five miles per hour, on the west side of said Twelfth Boulevard, and realizing that the driver of the machine was trying to drive across the crossing ahead of the street car, was bound to realize the imminent danger of a collision between the street car and the automobile. Brandt v. Railway Co., 153 Mo. App. 18; St. Louis Carbonating Co. v. Railway Co., 162 Mo. App. 18; 25 R.C.L. sec. 106, p. 1242. (3) Where the particular circumstances of the case present a situation suggesting danger, as a usual thing, those operating a street car must conduct themselves accordingly, and their failure to do this is negligence on the part of the street railway company. Schafstette v. Railroad, 175 Mo. 154. (4) Instructions 1 and 2, given on behalf of the plaintiff, were applicable and fully covered the law and the facts. O'Gara v. Transit Co., 204 Mo. 724; Eckhardt v. Transit Co., 190 Mo. 619. (5) Defendant cannot complain of misleading instructions unless requesting more explicit ones. Steinkamp v. F.B. Chamberlain Co., 294 S.W. 762; Bems v. Starck Piano Co., 296 S.W. 239; Herod v. Ry. Co., 299 S.W. 74; Whitlow v. Ry. Co., 282 S.W. 525; State ex rel. R. Co. v. Daues, 290 S.W. 421; Sallee v. Ry. Co., 12 S.W. (2d) 476.

ATWOOD, J.

This case, recently lodged with the writer, is an appeal taken by the St. Louis Public Service Company, a corporation, from a judgment for $18,000 rendered against it and William Shelton, on a verdict for that amount in favor of plaintiff, Bertha Christiansen, in an action for personal injuries alleged to have been directly and proximately caused by the negligence of both defendants in so managing and operating a street car and an automobile that they collided with each other and the...