Ellis v. Metropolitan St. Ry. Co.

• Court: Missouri Supreme Court
• Writing for the Court: Lamm
• Citation: Ellis v. Metropolitan St. Ry. Co., 234 Mo. 657, 138 S.W. 23 (Mo. 1911)
• Decision Date: 01 June 1911
• Parties: ELLIS et al. v. METROPOLITAN ST. RY. CO.

138 S.W. 23

234 Mo. 657

ELLIS et al. v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 1, 1911.

1. STREET RAILROADS (§ 103) — INJURIES TO TRAVELERS — HUMANITY RULE.

The humanitarian rule renders a street railway company liable for injuries to travelers whenever its servants, operating its cars on a public street, see, or by ordinary care could see, the traveler in danger from the oncoming car, and thereafter fail to exercise ordinary care in the use of means at hand to avoid injuring him, when such ordinary care, having regard to the safety of passengers, could have prevented the injury.

2. STREET RAILROADS (§ 103) — INJURIES TO TRAVELERS — HUMANITY RULE — NEGLIGENCE.

When a person out of danger negligently moves into a place of danger from an oncoming street car so close to it that, under the circumstances, his danger could not be reasonably apprehended by those in charge of the car who might see his peril in time to have saved him by ordinary care, then the traveler's negligence is either the proximate cause of his own injury or if the carrier be also negligent, the traveler's negligence and the negligence of the carrier are concurrent, and there can be no recovery under the humanitarian rule.

3. STREET RAILROADS (§ 117) — DEATH OF TRAVELERS — HUMANITY RULE — QUESTION FOR JURY.

In an action for the death of plaintiff's son while driving diagonally across a street railroad track by being struck by a car approaching from the rear, whether defendant's motorman in charge of the car by ordinary care could have discovered decedent's peril in time to have avoided the collision, so that his failure to do so would justify a recovery for decedent's death, notwithstanding his contributory negligence under the humanity rule, held for the jury.

4. APPEAL AND ERROR (§ 882) — RIGHT TO ALLEGE ERROR — PARTICIPATION IN ERROR.

Where defendant requested an instruction containing the same word objected to as rendering an instruction given misleading, defendant was estopped to rely thereon as error.

5. APPEAL AND ERROR (§ 171) — THEORY OF CASE.

The theory on which a case was tried will be followed on appeal.

6. STREET RAILROADS (§ 118) — DEATH OF TRAVELER — INSTRUCTIONS — TRACKS.

Where, in an action for death of a traveler while crossing double street car tracks in a street, it was shown that the two tracks were close together, that the car by which decedent was struck was running on the south track, and that there came a time while decedent was on the north track that his horse was on the south, and from that time on he was in imminent danger, the court did not err in charging that if the jury found from the evidence that in crossing the "tracks" decedent was in a perilous position, etc., on the theory that the only danger existed while deceased was crossing the "track" on which the car was being operated.

7. TRIAL (§ 191) — INSTRUCTIONS — ASSUMED FACTS.

Where, in an action for death in a street car collision, the witness agreed that decedent did not look at all in the direction from which the car approached, but continuously looked in the opposite direction in which he was driving, and attempted to cross the tracks ahead of the car, it was not error for the court, in its instructions, to assume that decedent was not aware of the approach of the car and went on the track without looking.

8. STREET RAILROADS (§ 103) — DEATH OF TRAVELER — COLLISION — HUMANITY RULE — INSTRUCTIONS.

Where decedent was killed while crossing a street car track, an instruction that if decedent received injuries from which he died while crossing defendant's track, and he was in a perilous situation, arising from danger of being struck by the car, and defendant's motorman saw, or by ordinary care could have seen, him in peril, and was thereafter negligent in failing to exercise ordinary care in the use of the means at his command to avoid the collision (if he so failed), and the motorman with due regard to the safety of its passengers could, with ordinary care, have avoided the collision, and as a direct result of his failure, if any, the wagon decedent was driving was struck and he was killed, then plaintiffs were entitled to recover, notwithstanding decedent was negligent in crossing and going upon the tracks without looking or becoming aware of the approach of the car, properly submitted the humanitarian rule.

9. APPEAL AND ERROR (§ 1033) — INSTRUCTIONS — RIGHT TO ALLEGE ERROR.

Defendant may not allege error of an instruction more favorable to it than the law authorized.

10. STREET RAILROADS (§ 118) — TRIAL (§ 191) — INSTRUCTIONS — ASSUMED FACTS.

An instruction that it was the duty of defendant's motorman to keep a reasonable lookout for persons on or approaching the track and going into danger, and if deceased was approaching the tracks unconscious of the approach of the car, and it was apparent to a reasonably prudent person that he was unmindful of danger in going on the track, then defendant's motorman was bound to at once take precautions to avoid a collision was not objectionable, as assuming either that the motorman did not keep a lookout or that deceased was unconsciously going into danger, nor was it misleading as authorizing the jury to find that decedent was so unobservant as to charge the motorman with the duty of taking precaution, and to assume that deceased would continue too late to save himself.

11. STREET RAILROADS (§ 81) — OPERATION OF CARS — REASONABLE LOOKOUT.

An instruction requiring a street railway motorman to keep a "reasonable lookout for persons" was not objectionable as requiring too high a decree of care; the rule being that he is required to keep a "vigilant watch."

12. STREET RAILROADS (§ 90) — DEATH OF TRAVELER — DUTY OF MOTORMAN.

Plaintiff's decedent while driving a rig to a barn was struck by an approaching street car as he was crossing the tracks at a rough temporary crossing, constructed during the laying of a pavement on the street. As decedent was crossing the tracks, his face was turned from the car at all times, and his attention engrossed in guiding his horse over the rough crossing; the evidence indicating that it was evident from his approach to the track that he was bent on crossing it at a gait and with a demeanor showing unconsciousness of impending danger. Held, that the motorman was not entitled to wait to see if decedent would not save himself before taking steps to prevent collision, but was bound to act on reasonable appearances, put his car under reasonable control, and stop it if necessary, and, if possible, before collision.

13. STREET RAILROADS (§ 90) — PERSONS APPROACHING TRACK — PRESUMPTIONS.

Where the conduct of a person driving a vehicle approaching a street railway track would lead a motorman of ordinary prudence to conclude that the person was going on the track in front of the car, the motorman's right to act on the presumption that the person will stop before going on the track ceases.

14. STREET RAILROADS (§ 118) — INSTRUCTIONS.

Where there was evidence justifying a recovery for death of plaintiff's decedent in a collision with a street car at a crossing, under the humanitarian rule, an instruction to find for defendant if decedent did not look or listen, when by looking he could have seen or by listening he could have heard the approach of the car before going on the track, was properly refused.

15. TRIAL (§ 260) — INSTRUCTIONS — REFUSAL OF REQUESTS — INSTRUCTIONS GIVEN.

A request as to charge on a proposition substantially given in another instruction may be properly refused.

16. STREET RAILROADS (§ 113) — DEATH OF TRAVELERS — CROSSINGS — CONDITION.

In an action for death in a collision at a temporary street crossing, roughly constructed during paving operations, evidence that there was no crossing for teams in the region except the one used by decedent, some of which showed that the teams were not "permitted" to cross elsewhere, and others that they were not in the "habit" of crossing except at the point in question, etc., was admissible to show the environment, conditions, and circumstances at the place of the accident, and was not objectionable because defendant could not control the acts of the city or private individuals or the right of citizens to cross and recross the street.

17. STREET RAILROADS (§ 111) — DEATH OF PEDESTRIAN — ISSUES AND PROOF.

Where, in an action for death at a street railroad crossing, the petition alleged that no proper warning was given deceased of the approach of the car which averment was denied, evidence that no bell was sounded as the car approached the crossing was within the issues.

18. STREET RAILROADS (§ 103) — CROSSING ACCIDENT — HUMANITY RULE — DUTY TO WARN.

Under the humanitarian rule, the duty of a motorman approaching a traveler crossing the tracks is graduated according to circumstances, and, if he can warn and thereby save life, he is bound to do so, and if it is apparent that the warning, when made, is, or if made, would be ineffectual, he is bound to check the speed and stop the car if possible.

19. APPEAL AND ERROR (§ 1053) — PREJUDICE — EVIDENCE ON WITHDRAWN ISSUE.

Where plaintiff in an action for death at a street railway crossing abandoned the issue of defendant's negligence in failing to warn decedent of the approach of the car by asking no instructions thereon and an instruction was given for defendant that the fact that no bell was sounded would not warrant a recovery, defendant was not prejudiced by the admission of evidence that no bell was sounded as the car approached the crossing.

20. EVIDENCE (§ 474) — OPINIONS — QUALIFICATION — SPEED.

Where a witness had observed the running of street cars in the city and saw the speed of the car by which decedent was killed, he was qualified to express his opinion as to such speed.

21. EVIDENCE (§ 539½) — EXPERTS — QUALIFICATION — SPEED.

Where a motorman had worked for defendant as a motorman on the street in question...