Degel v. St. Louis Transit Co.
| Decision Date | 14 April 1903 |
| Citation | 74 S.W. 156,101 Mo.App. 56 |
| Parties | WILHELMINA DEGEL, Respondent, v. ST. LOUIS TRANSIT CO., Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jefferson Circuit Court.--Hon. Frank R. Dearing, Judge.
AFFIRMED.
Judgment affirmed.
Boyle Priest & Lehmann, Byrnes & Bean and Geo. W. Easley for appellant.
(1) The fact that the plaintiff for twelve years had driven over this track three times a week, and knew that this particular car always passed the point of collision about that hour rendered the duty to look and listen imperative upon her for her own protection. Holwerson v. Railroad, 157 Mo 225; Kirtley v. Railroad, 65 F. 391; Railroad v. Moseley, 57 F. 921; Sinclair v. Railroad, 133 Mo. 233. (2) It required both the motorman and conductor to keep a vigilant watch and to stop the car in the shortest "time and space possible under the circumstances." Gebhardt v. St. Louis Transit Co., 71 S.W. 448. (3) The instruction concedes negligence and yet asks the jury to find such conceded negligence to be ordinary care on behalf of the plaintiff. One position "cuts the throat" of the other. Kelney v. Railroad, 101 Mo. 73; Holwerson v. Railroad, 157 Mo. 237.
Wm. L. Bohnenkamp and Wm. R. Gentry for respondent.
(1) The duty on the part of defendant's motorman to notify plaintiff of his approach was imperative. Conrad Grocer Co. v. Railroad, 89 Mo.App. 391; Morgan v. Railroad, 159 Mo. 262. (2) Therefore, even if it was "palpable error" for the court to include the conductor in its instruction which it gave at the request of plaintiff, the error was invited by defendant in the instructions which it asked and which were given, and, therefore, appellant can not now complain. This principle of law is well settled. Christian v. Ins. Co., 143 Mo. 460; Baker v. Railroad, 122 Mo. 533.
--This is an action to recover damages for personal injuries sustained by plaintiff, while with her husband in a single-horse spring wagon moving southwardly in the west track of defendant's railway, on Broadway near Clarence avenue in the city of St. Louis. The evidence established that between three and four o'clock, a. m., July 3, 1901, plaintiff and her husband, a truck farmer, had been for a considerable distance riding in the western car track used by defendant's south-bound cars, and when they approached Clarence avenue, plaintiff heard the noise of a car approaching behind them and then about thirty feet distant, and warned her husband who sought to escape by turning east, but the wagon was struck and overturned. The colliding car was designated a beer express car, carrying no passengers and in charge of no conductor. Plaintiff, who had traveled over this street frequently for many years, testified that neither she nor her husband had looked or listened for a car, until apprised by the noise that one was drawing dangerously near to their vehicle.
The negligence charged is threefold: first, that the servants of defendant in charge of said car negligently, carelessly and unskillfully managed, controlled, ran and operated its car and caused it to collide with the rear portion of the wagon; second, that the motorman in charge of the car saw, or by the exercise of ordinary care, would have seen plaintiff in a position of peril and could by the exercise of ordinary care, have stopped the car or slackened its speed in time to avoid injuring plaintiff, but negligently failed to use ordinary care in that regard; and, third, the paragraph of the Municipal Code of the city of St. Louis, familiarly termed, "vigilant watch" ordinance, is set forth and the acceptance, violation and disobedience of its provisions by defendant charged. The answer was a general denial and a plea of contributory negligence.
1. The defendant urges that as the plaintiff betrayed in her own testimony that according to her well-established habit and practice, she had long been traveling over Broadway southwardly in the early morning, and on this occasion riding a long distance on the track of defendant, the duty was rightly imposed on her to look and listen for the approach of cars of defendant, and her confessed failure so to do constituted such negligence, that the demurrer to the evidence should have been sustained. A conclusive refutation of this contention is found in the recent expressions of the Supreme Court which, by constitutional authority, must dominate. It is a familiar and well-established legal principle that, although a person may have negligently exposed himself to danger, the duty still remains to refrain from killing or injuring him. The general rule may be deduced that a party, plaintiff, who has placed himself in a dangerous position, where injury is likely to result and does ensue, notwithstanding such negligence on his part, may still recover for such injury, if he can establish that the defendant knew, or by the exercise of reasonable diligence could have known, of plaintiff's peril in time to avoid injuring him, and failed to exert reasonable care by which such injury might have been averted. The testimony shows that plaintiff herein was guilty of such negligence as would preclude a recovery, unless the motorman of the defendant saw or could have seen her exposure to danger, in time to have avoided the accident if he had exercised reasonable care. The case falls within the now well-established exception in the law of negligence permitting a recovery notwithstanding the negligence of the party injured, if defendant, after seeing the party in danger, or where such duty was imposed on defendant, by the exercise of ordinary care, might have seen him in time and averted the accident, failed to do so. If defendant's motorman saw, or by the exercise of ordinary care could have seen, the peril of plaintiff, even though caused by her own negligence, in time to avoid injury to her the plaintiff was entitled to recover, and her failure to look and listen for...
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