Clancy v. St. Louis Transit Co.

• Decision Date: 21 December 1905
• Citation: 192 Mo. 615,91 S.W. 509
• Parties: CLANCY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 509

192 Mo. 615

CLANCY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. PLEADING—SEPARATE CAUSES OF ACTION— ELECTION.

Where plaintiff joined in the same count a cause of action for common-law negligence, one based on the violation of a city ordinance, and another on willfulness, recklessness, or wantonness, it was error for the court to refuse to compel plaintiff to elect on which he would stand; such causes of action being improperly joined.

2. APPEAL — CURING ERROR — DEFECTIVE PLEADING.

The error was not cured by the court afterwards striking out allegations in the petition alleging a violation of the vigilant watch ordinance.

3. WITNESSES—IMPEACHMENT OF ONE'S OWN WITNESS—SURPRISE.

Defendant's motorman, who ran his car against plaintiff, made two written statements for defendant, and afterwards gave his deposition, taken by plaintiff, in which he stated that immediately before the accident he was looking straight ahead of him, and that plaintiff rose up from the trench across the track "instantly," and so close to him that he could not stop the car before striking him. He voluntarily resigned his position as motorman, and later, while endeavoring to get his job back, voluntarily went to plaintiff's attorney and made a statement directly contradictory to his former statements and testimony. A change of venue having been taken, plaintiff took the motorman to the place of trial, paying his expenses, but did not offer him as a witness, thereby preventing defendant from using his deposition, whereupon defendant called him, and he testified, contrary to his deposition and written statements, to material facts prejudicial to defendant. Held, that defendant was entitled to claim that it was surprised by the witness' testimony, and to lay a foundation for his impeachment by the introduction of his deposition and written statements.

4. STREET RAILROADS—INJURY TO PERSON ON TRACK—WILLFULNESS—PETITION.

Where a petition, in an action for injuries to a person struck by a street car, contained no allegation of willfulness, recklessness, or wantonness on the part of the motorman, it did not state a case under the humanitarian doctrine.

5. SAME—INSTRUCTIONS.

In an action for injuries to plaintiff by being struck by a street car, the court charged that, even though plaintiff was negligent in working between defendant's tracks and such negligence contributed to the injury, still if plaintiff had so placed himself in the dangerous position and thereafter such dangerous position became known, or by looking could have become known, to defendant's motorman, in time to have stopped the car by the exercise of ordinary care and thereby avoid the injuries complained of, and he failed to do so, plaintiff was entitled to recover. Held, that such instruction was erroneous as based on the "last clear chance doctrine," which does not obtain in Missouri.

6. SAME—WILLFUL INJURY—EVIDENCE.

Where, in an action for injuries to plaintiff by being struck by a street car, the motorman operating the car knew that plaintiff had been working at or near the point of the accident for at least a week before that, and testified that plaintiff was a friend of his, and that he would not have struck him if he possibly could have avoided doing so, there was no evidence of recklessness, wantonness, or willfulness sufficient to sustain an instruction in plaintiff's favor on the humanitarian doctrine.

7. SAME—CONTRIBUTORY NEGLIGENCE.

Where plaintiff was struck by a street car while working in a trench under the street car track, he was not entitled to rely on the motorman of an approaching car giving him warning of such approach, nor on his sense of hearing alone, and was guilty of contributory negligence precluding his recovery by permitting his mind to become so engrossed in his work that he failed to take proper precautions, either by looking or listening to ascertain the approach of the car.

Appeal from Circuit Court, Boone County; John A. Hockaday, Judge.

Action by Michael Clancy against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

Boyle & Priest and J. W. Jamison, for appellant. Taylor R. Young, Frank H. Haskins, Stern & Haberman, and N. T. Gentry, for respondent.

MARSHALL, J.

This is an action for $20,000 damages for injuries received by the plaintiff on the 3d of July, 1902, at a point on Shenandoah street, between Thurman Boulevard and Vandeventer avenue, in the city of St. Louis, in consequence of one of defendant's cars striking the plaintiff while he was engaged at work on the street between the double tracks of defendant's road, and while he was standing in a ditch that had been dug, at that point, for the purpose of laying gas pipes. A change of venue was taken by the plaintiff from the city of St. Louis, and the case was sent to Boone county, where the plaintiff recovered a judgment for $10,000, and the defendant appealed.

The Issues.

The petition charges the corporate capacity of the defendant, and alleges that it was engaged in operating street cars in the city of St. Louis, particularly at the point where the accident occurred; that on the day of the accident, the plaintiff was engaged as an employé of the Laclede Gaslight Company, in laying pipes under the tracks of the defendant, at said point, "and while in a stooping position between the two tracks of the defendant at said time and place, the plaintiff was struck," etc.; that the defendant's servants in charge of the car knew that the plaintiff and several employés of the gaslight company were engaged in laying pipes under the defendant's tracks, and "saw, or by the exercise of ordinary care and diligence in keeping a lookout for plaintiff and other persons on the track could and would have seen, plaintiff in time, by the exercise of ordinary care, to have stopped said car so as to have prevented said injuries, and by reason of such carelessness and disregard of duty on the part of defendant, its servants, agents, and employés, and in failing to keep proper lookout for persons on its track at said time and place, and in failing to stop said east-bound car in time to avoid said injuries, plaintiff was struck and injured as aforesaid. Plaintiff further alleges that said injuries were caused by the aforesaid negligence and carelessness, and also by defendant's agents and servants in charge of said car failing to keep a vigilant lookout for all persons on foot, either on the track or moving towards it, and on the first appearance of danger to persons to stop said car in the shortest time possible, and in running said car at a greater rate of speed than eight miles an hour, as required by subdivisions 4 and 10, respectively, of City Ordinance 1275, relating to running of street cars—the ordinance relied upon being set out; that the city granted to defendant the right to lay its street cars on Shenandoah street, and in accepting the grant the defendant assumed the obligation to obey said ordinances; that the plaintiff was rightfully on the track of defendant, because his employer had obtained from the city a permit to lay its gas pipes; that said work was being done with the knowledge and consent of the defendant; that the injuries complained of "were caused by the aforesaid carelessness and negligence of the defendant's servants, and also by the defendant permitting its motors and brakes, for the operation and stopping of said eastbound street car, to become defective, out of order and repair, by reason of which said car could not be stopped in time to avoid his said injuries. Plaintiff further says that his injuries were caused in part by the negligence of the defendant's servants in failing to ring the gong, or give him any other warning of the approach of said car;" that plaintiff's injuries consisted of a fracture of the skull, which will render him an invalid for life; that four ribs were broken on the left side and two on the right, and he has suffered injuries in the back, and was otherwise severely injured, and will be crippled for life, etc.

The defendant moved to require the plaintiff to elect which one of the causes of action stated in his petition he would stand on, assigning therefor the following reasons, to wit: "First, because said plaintiff has improperly united in the same count a cause of action at common law with a cause of action upon an ordinance of the city of St. Louis, commonly called the `vigilant watch ordinance'; second, because the plaintiff has improperly united in the same count a cause of action arising ex delicto with a cause of action arising ex contractu." The court overruled the motion, and the defendant saved an exception by filing a term bill of exceptions, and afterwards by preserving it in the final bill of exceptions. Thereafter, on motion of the defendant, the court struck out from the petition the alleged negligence of the defendant in "failing to keep a vigilant lookout for all persons on foot either on the track or moving towards it, and on the first appearance of danger to the persons to stop said car in as short a time as possible," and the further allegation, referring to the subsection of the city ordinance containing and setting out in full the vigilant watch ordinance, but allowed the allegation of negligence as to the violation of the speed ordinance to remain.

The answer is a general denial, with a plea of contributory negligence, in that the plaintiff, without looking or listening for the approach of the car, carelessly and negligently stood in the hole or excavation between the defendant's tracks with a portion of his body a sufficient distance above the street to be struck by a car moving over the tracks, or so near to a moving car approaching on one of the tracks that he was struck and injured, when, if before placing himself in such position he had looked or listened for the approach of the car, he could have seen...