Ennis v. Union Depot R. Co.

• Decision Date: 05 March 1900
• Citation: 55 S.W. 878,155 Mo. 20
• Parties: ENNIS v. UNION DEPOT R. CO.
• Court: Missouri Supreme Court

55 S.W. 878

155 Mo. 20

ENNIS v. UNION DEPOT R. CO.

Supreme Court of Missouri, Division No. 2.

March 5, 1900.

STREET RAILROADS — INJURY AT CROSSINGS — NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — DISCOVERY OF PLAINTIFF'S DANGER — CARE — INSTRUCTIONS.

In an action for injuries sustained by defendant's electric car colliding with plaintiff's team at a street crossing, the court, at plaintiff's request, instructed the jury that if the motorman discovered plaintiff in a position of danger, either while approaching the tracks, or while on them, or by the exercise of ordinary care could have discovered plaintiff, either while on or approaching the tracks, and could have stopped the car in time to have avoided the injury, and did not do so, they should find for plaintiff. The court, at defendant's request, further instructed the jury that, if plaintiff was guilty of negligence in driving on the track in front of the approaching car, he cannot recover, unless they believe that, after he exposed himself to danger, the motorman, by the exercise of ordinary care, could have prevented the injury. Held, that the instructions are not so in conflict as to the measure of care required of the motorman as to warrant a reversal; nor does the instruction given at defendant's request, when construed in connection with the instruction given at plaintiff's request, restrict defendant's liability to the necessity of the motorman stopping his car after plaintiff was actually on the track.

Appeal from St. Louis circuit court.

Action by Michael Ennis against the Union Depot Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Sterling P. Bond, for appellant. E. S. Robert, for respondent.

GANTT, P. J.

This is an appeal from a verdict and judgment in favor of the defendant, in an action for personal injuries which resulted from a collision between an electric car of the defendant company and the plaintiff's team at a point where said street-car line crosses Ohio avenue in the city of St. Louis. The negligence charged was three-fold: First, that the motorman in charge of said electric car negligently failed to sound the gong on said car as it approached the said crossing, and the failure to do so was the direct and immediate cause of the accident. Second, that, by ordinance defendant was prohibited from running at a rate in excess of 15 miles an hour, and on the occasion of this injury was running in excess of 15 miles an hour, and that such unlawful speed was the direct cause of the injury to plaintiff. Third, that plaintiff, in the exercise of due care, was proceeding to drive across said crossing, and the defendant's servants in charge of said car saw, or, in the exercise of ordinary care, could have seen, the danger plaintiff was in, and prevented the injuries to him, but they negligently and carelessly failed to do so. The answer was a general denial and a plea of contributory negligence. There was evidence tending to show the gong was not sounded, and that the car was running in excess of 15 miles an hour. There was also evidence that the gong was sounded, and that the car was not running in excess of 15 miles an hour, and that plaintiff was drunk, and recklessly drove his team on the crossing immediately in front of the moving car, so near as to make it impossible for the motorman to stop the car in time to avoid the injury, and evidence tending to show the motorman could have seen that plaintiff was driving on the crossing without paying heed to the car, and that the car could have been stopped by the exercise of proper care.

The sole ground urged in this court for a reversal of the judgment is that the instructions of the circuit court were conflicting, and that one instruction, known as instruction "c," given at the instance of the defendant, was erroneous. For the plaintiff the court gave the following instructions numbered 3 and 4: "(3) The court instructs the jury that, although you believe from the evidence that plaintiff was guilty of negligence in driving upon defendant's track, yet, if the jury further believe from the evidence that the wagon which said Ennis was driving became in imminent danger of being struck by defendant's electric street car, and defendant's servants in charge of said car became aware of the danger of striking said wagon in time to have enabled said servants, by the exercise of ordinary care, to have averted striking said wagon, or if the jury believe from the evidence that said servants in charge of defendant's electric car, by the exercise of ordinary...