Foy v. United Railways Company of St. Louis

• Citation: 226 S.W. 325,205 Mo.App. 521
• Parties: MARY FOY, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Decision Date: 07 December 1920
• Court: Missouri Court of Appeals

226 S.W. 325

205 Mo.App. 521

MARY FOY, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

December 7, 1920

Appeal from the Circuit Court of the City of St. Louis.--Hon. Wilson A. Taylor, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Charles W. Bates, T. E. Francis and Albert D. Nortoni for appellant.

(1) The court should have given defendant's demurrer requested by it at the close of plaintiff's case, because the negligence of her son and servant, the chauffeur, which is imputed by the law to her, was such as to render plaintiff guilty of contributory negligence as a matter of law and precludes her recovery. (a) The negligence of plaintiff's son, driving her in her automobile, is her negligence, and if she is injured or damaged as a result of the negligence of her son, in so acting, contributing to such injury or damage such negligence precludes her right of recovery. Threadgill v. United Ry. Co., 214 S.W. 161; Markowitz v. Met. Ry. Co., 186 Mo. 350. (b) The Vigilant Watch Ordinance is not the Last Clear Chance Doctrine. On the contrary contributory negligence is a complete defense thereto, identically as it is under the Speed Ordinance, or any other statutory or primary negligence. Gubernick v. United Ry. Co., 217 S.W 33; Vogt v. United Ry. Co., 266 S.W. 75. (c) "A violation by the railway company of the city ordinance prescribing a maximum rate of speed for trains, does not abrogate the rule of law requiring one approaching a railroad track to exercise due care to avoid injury. Nor does it shift responsibility to the company if injury ensues from the failure of the traveler to exercise that care." Schmidt v. Mo. P. Ry. Co., 191 Mo. 215-228; Laun v. St. L. & S. F. Ry. Co., 216 Mo. 563; Fletcher v Atlantic & P. Ry. Co., 64 Mo. 484; Mockowik v. K C., etc., Ry. Co., 196 Mo. 550. (d) Neither did plaintiff or her son and servant, the chauffeur, have the right to presume in this case that the street car was being operated at a rate of speed within the maximum prescribed by the ordinance. Mockowik v. K. C., etc., Ry. Co., 196 Mo. 550; Volker's Products Co. v. United Ry. Co., 185 Mo.App. 310; Paul v. United Ry. Co., 152 Mo.App. 577; Paul v. United Ry. Co., 160 Mo.App. 599; Green v. Mo. P. Ry. Co., 1912 Mo. 131. (e) Railroad tracks are in and of themselves signals of danger to all persons, sui juris, and one must exercise due care in looking and listening both ways for the approach of cars thereon before venturing upon such tracks. Dyrez v. Mo. P. Ry. Co., 238 Mo. 33-46, 47; Volker's Products Co. v. United Ry. Co., 185 Mo.App. 310-317; Schmidt v. Mo. P. Ry. Co., 191 Mo. 215; Kelsey v. Mo. P. Ry. Co., 129 Mo. 362; Payne v. C. & A. Ry. Co., 136 Mo. 562; Laun v. St. L. & S. F. Ry. Co., 216 Mo. 563; Sanguinette v. M. R. B. Ry. Co., 196 Mo. 466; Mockowik v. K. C., etc., Ry. Co., 196 Mo. 559; Peters v. Lusk, Rec., 200 Mo.App. 372. Also the same case in Supreme Court, under title, State ex rel., Peters v. Reynolds, 214 S.W. 121. (f) Due care in this case exacted by the statute, insofar as both plaintiff and her son, servant and chauffeur, is concerned, is high care--that is, such care as a very careful person would exercise under like or similar circumstances. Threadgill v. United Ry. Co., 214 S.W. 161; England v. S.W. Mo. Elec. Ry. Co., 180 S.W. 32; Nichols v. Kelley, 159 Mo.App. 1; Par. 9, Sec. 12, p. 330, Laws of Mo., 1911. (g) And this duty to use high care in looking and listening for an approaching car before venturing upon the railroad track is a continuing duty until the track is reached and the crossing made. Kelsey v. Mo. P. Ry. Co., 129 Mo. 362; Volker's Products Co. v. United Ry. Co., 185 Mo.App. 310; Mockowik v. K. C., etc., Ry. Co., 196 Mo. 550; Maginnis v. Mo. P. Ry. Co., 182 Mo.App. 694; Also same case in Supreme Court, Maginnis v. Mo. P. Ry. Co., 268 Mo. 667. (h) Therefore, it is the established law in the Supreme Court and in this court, in cases of this character, where one is injured in crossing railroad tracks--we quote "that which he could have learned by the exercise of ordinary (high) care, under such circumstances, will be imputed to him as a known fact" (State ex rel. Peters v. Reynolds, 214 S.W. 121). In the same case in this court, the court said: "That which deceased could have learned by the exercise of ordinary (high) care under the circumstances will be imputed to him as a known fact." Peters v. Lusk, Rec., Frisco, 200 Mo.App. 382; See, also, Vandeventer v. C. & A. Ry. Co., 177 S.W. 834. (i) In applying these principles, the courts have declared, when ordinary care only was required, that one crossing an open space from fifteen to twenty feet wide, before reaching the track without looking, was negligent as a matter of law such as precluded a recovery. Such is the judgment of this court pronounced in Peters v. Lusk, Mo.App. 200, 372. And on certiorari in the same case in Supreme Court, the same ruling was made in State ex rel. Peters v. Lusk, 214 S.W. 121; Vandeventer v. C. & Ry. Co., 177 S.W. 838; Green v. Mo. P. Ry. Co., 192 Mo. 131; Burnett v. A., T. & S. F. Ry. Co., 172 Mo.App. 51-56; Hook v. Mo. P. Ry. Co., 162 Mo. 570. (j) Plaintiff is conclusively shown to have been guilty of contributory negligence. To look while ten or fifteen feet from the track will not suffice, for the duty to look and listen is a continuing one, and when the conveyance could have been stopped while yet in a place of safety, the law requires a last and final look for the car while yet in such place of safety, and before entering into the danger zone. McCreery v. United Ry. Co., 221 Mo. 18; Gubernick v. United Ry. Co., 217 S.W. 33; Volker's Products Co. v. United Ry. Co., 185 Mo.App. 310. (2) Because of the inherent equity and justice of the law, it will not permit one to say or be believed, nor will the courts tolerate a finding by the jury that one possessed of sight and hearing, looked or listened for a car and did not see or hear it approaching, when the physical facts disclose that had he looked or listened with due care (and in this case high care) he could have seen or heard such car. Payne v. C. & A. R. R. Co., 136 Mo. 562-580; England v. S.W. Mo. Ry. Co., 180 S.W. 32-34; Hook v. Mo. P. Ry. Co., 162 Mo. 569-581; Fagg v. Mo. and N. Ark., R. R. Co., 185 Mo. 79-84; Dyrez v. Mo. P. Ry. Co., 238 Mo. 33-47; Guffey v. Harvey, 179 S.W. 729-731; Huggard v. Mo. P. Ry. Co., 134 Mo. 673-679; Salotuchin v. Met. St. Ry. Co., 127 Mo.App. 577; Landrum v. St. L., etc., R. R. Co., 178 S.W. 273-275; Kelsey v. Mo. P. Ry. Co., 129 Mo. 362. (a) In such cases the law treats with the party as having seen the car and notwithstanding, negligently drove upon the track into an obvious danger. Kelsey v. Mo. P. Ry. Co., 129 Mo. 362; Maginnis v. Mo. P. Ry. Co., 182 Mo.App. 694. The same case, opinion approved in the Supreme Court, Maginnis v. Mo. P. Ry. Co., 268 Mo. 667; Dyrez v. Mo. P. Ry. Co., 238 Mo. 33-47; Mockowik v. K. C., etc., Ry. Co., 196 Mo. 550; England v. S.W. Ry. Co., 180 S.W. 32; Hook v. Mo. P. Ry. Co., 162 Mo. 569. (3) The evidence elicited from W. P. Smith, under the question as to the shortest space and time the car could be stopped while running at ten miles per hour was immaterial, because in any view plaintiff was guilty of contributory negligence which barred her right of recovery. McCreery v. United Rys. Co., 221 Mo. 18; Gubernick v. United Rys. Co., 217 S.W. 33; Volker's Products Co. v. United Rys. Co., 185 Mo.App. 310. (a) Moreover, such is immaterial because the question did not hypothesize what a reasonably prduent motorman could do towards stopping the car by the exercise of ordinary care with the appliances at hand, and was therefore without probative force. Burge v. Wabash R. R. Co., 244 Mo. 76. (b) The law does not reckon with the question as to whether a car may be stopped in the shortest space and time, but rather as to in what distance the car may be stopped in the shortest space and time by the exercise of ordinary care when used by a reasonably prudent motorman. See Vogt v. United Rys. Co., 226 S.W. 75; Also, Gebhardt v. St. L. Transit Co., 97 Mo.App. 373. (4) The evidence of witness Kennedy, after he disclaimed his ability to state the rate of speed the car was going at the time, was incompetent and prejudicial because it amounted to a mere guess. Such mere guess is not tolerated. McCreery v. United Rys. Co., 221 Mo. 18-28. (5) Plaintiff's instruction No. 1, submitting the charge of negligence under the viligant watch ordinance, is erroneous, misleading and prejudicial in that it authorizes a verdict for plaintiff if the jury should find that defendant's motorman "failed to stop said car in the shortest space and time possible," whereas, such is not the law. The obligation of the defendant, under the law, is to do no more than to exercise ordinary care to stop the car in the shortest time and space possible to avert a collision. The point has been but recently decided. Vogt v. United Rys. Co., 226 S.W. ___; Also, Gebhardt v. St. L. Transit Co., 97 Mo.App. 373. (a) Plaintiff's instruction No. 1 is erroneous and prejudicial in that under the Vigilant Watch Ordinance contributory negligence, when shown, is a complete defense, and such instruction attempted to submit the question of plaintiff's contributory negligence, and also that of her servant and chauffeur, to the jury, as one of fact, when in this case plaintiff's contributory negligence, and that of her servant, the chauffeur, appears conclusively as a matter of law, and therefore should not have been submitted to the jury at all. Gubernick v. United Ry. Co., 217 S.W. 33; McCreery v. United Ry. Co., 221 Mo. 18. (b) Plaintiff's instruction No. 1 is erroneous, misleading and prejudicial for that it...