Friedman v. United Railways Co.
| Decision Date | 18 March 1922 |
| Citation | 238 S.W. 1074,293 Mo. 235 |
| Parties | TILLIE FRIEDMAN, Appellant, v. UNITED RAILWAYS COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.
Affirmed.
Karl M Vetsburg for appellant.
(1) The uncontradicted evidence in this case shows that defendant's street car was going from twenty-five to thirty miles an hour, in violation of the ordinance introduced; and as there is no evidence of contributory negligence on the part of plaintiff, the verdict of the jury is against the law, the evidence and the weight of the evidence. Etlinger v. Kahn, 134 Mo. 492; Schooling v. Railway, 75 Mo. 518; Douglas v Orr, 58 Mo. 575; State v. Scott, 214 Mo. 261; Doering v. Saum, 56 Mo. 479. (2) The negligence, if any, of plaintiff's husband, cannot be imputed to plaintiff. Sluder v. Transit Co., 189 Mo. 107; Newson v. Harvey, 202 S.W. 249; Johnson v. Traction Co., 176 Mo.App. 174; Zalotuchin v. Railway, 127 Mo.App. 577; Burleigh v. Transit Co., 124 Mo.App. 724; Montague v. Mo. Railway, 193 S.W. 935; Burton v. Pryor, 198 S.W. 1117. (3) The plaintiff was only obligated to use ordinary care to see that the driver was not negligent in driving the automobile. Ebert v. Street Ry., 174 Mo.App. 45; Stotler v. Railroad, 200 Mo. 107; Fechley v. Traction Co., 119 Mo.App. 358; Ziegler v. United Rys., 220 S.W. 1018. (4) After plaintiff's husband started northeastwardly toward the car track, the street car not then being in sight, plaintiff was not required to continue looking for street cars until she had reached the track. Ziegler v. United Rys., 220 S.W. 1018; Moloney v. United Rys., 183 Mo.App. 298; Ellis v. Ry. Co., 234 Mo. 657. (5) After plaintiff's husband started toward the car track, plaintiff was under no obligation to do anything for her own safety, as the time was too short to permit her to do anything. Rappaport v. Roberts, 203 S.W. 676; Ziegler v. United Rys., 220 S.W. 1018. (6) Even though Woody's testimony as to the alleged conversation en route to the hospital was admissible and to be believed, it is no evidence of contributory negligence of plaintiff. Stotler v. Railroad, 200 Mo. 147; Eversole v. Railroad, 249 Mo. 523. (7) It was error to permit the witness Woody to testify to the alleged conversation between the plaintiff and her husband in Woody's automobile on the way to the hospital immediately following plaintiff's injuries. All the testimony, including Woody's, was that the plaintiff was then in a delirious, highly hysterical, abnormal and wild condition, and presumptively not in a state of mind to comprehend the effect of statements she or her husband may have made. The jury may not have placed any value on her statements, but did give credence to her husband's statements, he not being badly injured. The legal effect of Woody's testimony was to get the alleged admissions or statements of plaintiff's husband before the jury and give evidence of an incompetent witness. The theory on which this evidence was offered was that of admissions against interest -- a theory not tenable with reference to an admission of a mentally incapable and irresponsible person. R. S. 1919, sec. 5415; Hoffman v. Hoffman, 126 Mo. 486; State v. Burlingame, 146 Mo. 225; Greenleaf, Ev. (15 Ed.) sec. 185; 22 C. J. p. 451, sec. 541; Gowen v. Bush, 76 F. 349; People v. Koerner, 154 N.Y. 374; Schilling v. Ry. Co., 77 A.D. 74; 22 C. J. page 325, sec. 362-C. (8) Plaintiff had the right to prove how her husband was driving earlier in the evening as that had a bearing upon the question whether she should have been aware of danger at the time of the accident and whether she had knowledge that the driver was remiss in his duty. Stotler v. Railroad, 200 Mo. 144; Fechley v. Traction Co., 119 Mo.App. 358. (9) Instruction "C," offered by plaintiff and refused by the court correctly states the law and should have been given. Burleigh v. Transit Co., 124 Mo.App. 730. (10) Plaintiff's attorneys had the right to consume the entire time allotted to them by the court for argument to the jury, and defendant's waiver of its argument did not change plaintiff's right. The court fixed the time at twenty minutes a side. This time was too short for argument of a case occupying two days and covering ninety-eight pages of printed record. The objection, however, is not the original allowance of time, but is to the court's refusal to permit plaintiff's counsel to use the time allowed. State v. Stewart, 9 Nev. 120; Reagan v. Transit Co., 180 Mo. 143; Stoecker v. Cooper, 220 S.W. 973. (11) The trial court erred during the trial in orally and erroneously declaring the law with regard to care required to be used by plaintiff. State v. Nelson, 181 Mo. 340; State v. Teeter, 239 Mo. 483. (12) The trial court erred in exhibiting impatience and bias so as to affect the jury in its verdict. State v. Teeter, 239 Mo. 483; McCarty v. Transit Co., 192 Mo. 396.
Charles W. Bates, T. E. Francis and Albert D. Nortoni for respondent.
(1) Even though plaintiff's husband was driving the automobile, her own contributory negligence was such as to preclude her right of recovery as a matter of law. Leapard v. Rys. Co., 214 S.W. 268; Fetchley v Traction Co., 119 Mo.App. 367; Burton v. Pryor, 198 S.W. 1117. (2) Railroad tracks are in and of themselves ever present signs and signals of danger, and persons in conveyances, whether driver or guest, must approach them with due care. Evans v. Ry. Co., 233 S.W. 399; Fetchley v. Traction Co., 119 Mo.App. 367; Burton v. Pryor, 198 S.W. 1117; Alexander v. Railroad, 233 S.W. 44; Morrow v. Hines, 233 S.W. 495; Dyrcz v. Railroad, 238 Mo. 47. (3) When to look is to see and to listen is to hear one may not make a question for the jury as to that matter by saying that he looked and listened and did not see or hear, because such is contrary to physical facts and common experience. Alexander v. Railway, 233 S.W. 50; Dyrcz v. Railway, 238 Mo. 47; Hook v. Railway, 162 Mo. 569; Evans v. Railroad, 233 S.W. 399. Courts take judicial notice of matters of common knowledge without regard to what witnesses may say concerning them. Home Tel. Co. v. Sarcoxie Tel. Co., 236 Mo. 127. (4) Even the evidence on the part of the plaintiff shows that the automobile, when headed north, ran into the forward end of the south-bound street car at the southwest corner of the street car, and such being true, there is no liability, for the speed of the street car was not the proximate cause. The automobile having thus run into the street car head-on, the negligence of the auto driver and not excessive speed constituted the proximate cause. McCreery v. United Rys., 221 Mo. 29, 31; King v. Wabash Railroad, 211 Mo. 1; Frank v. Free, 190 Mo.App. 83. (5) Plaintiff having voluntarily requested the court, by her instructions to submit her contributory negligence to the jury for a finding thereon, she is estopped to now argue that there is no evidence of contributory negligence on her part. Oferman v. Rys. Co., 125 Mo. 415; Walker v. Railroad, 193 Mo. 453; Keele v. Railway, 258 Mo. 75; Kenefick v. Fire Ins. Co., 205 Mo. 306; Mt. Vernon Mfg. Co. v. Mill Co., 227 S.W. 67. (6) The conversation between plaintiff and her husband, immediately after the accident, detailed by Woodey is of the res gestae. State v. Lockett, 168 Mo. 487; State v. Martin, 124 Mo. 529; Shore v. Dunham, 178 S.W. 903; State v. Castor, 93 Mo. 251, 252; Jewell v. Mfg. Co., 166 Mo.App. 560. (a) And in case of an accident similar to this one, although some considerable time elapsed before the statements are made, if they appear to be spontaneous and not concocted and spring from the transaction as by being made to her physician while preparing to treat her or on the way to the hospital for treatment such declarations and conversation are competent as of the res gestate. Harriman v. Stowe, 57 Mo. 93; Brownell v. Railroad, 47 Mo. 239; Entwhistle v. Feighner, 60 Mo. 214; Ins. Co. v. Mosley, 8 Wall. (U.S.) 407; Greenlee v. Casualty Co., 192 Mo.App. 308; Comm. v. Pike, 3 Cush. (Mass.) 181; Railroad v. Coyle, 55 Pa. St. 402; Cattison v. Cattison, 22 Pa. St. 275. (b) The conversation between plaintiff and her husband in the automobile while en route to the hospital, immediately after the accident, was not incompetent because it was essential to elicit what the husband said in order to reveal the meaning of plaintiff's statement, "I know it was; I don't blame you, sweetheart," and such conversation is in no sense a confidential communication. Greenlee v. Casualty Co., 192 Mo.App. 309; New York Life Ins. Co. v. Mason, 272 F. 32; Parkhurt v. Bardell, 110 N.Y. 386; Ins. Co. v. Morley, 8 Wall. 397. (c) Where such statements are spontaneously made as in this case, either shortly before or shortly after the accident, and are clearly connected with it and tend to elucidate it, when the party had neither opportunity nor cause to concoct a story, they are properly received in evidence. Hodges v. Hill, 175 Mo.App. 455; Parr v. Ins. Co., 178 Mo.App. 155. (d) Even statements of a third party are competent of the res gestae. State v. Kaiser, 124 Mo. 651; State v. Walker, 78 Mo. 380. (7) Evidence tending to show that one was either negligent or careful in respect to his acts concerning a similar matter is not admissible, because to receive it would detract from the main issue in the case and mislead by diverting the juror's mind to mere collateral issues. Goble v. Kansas City, 148 Mo. 470. (8) No matter of exception is reviewable on appeal unless an exception is saved thereto at the trial. Sec. 1512, R. S. 1909; In re Aiken, 262 Mo. 403; Hubbard v. Slavens, 218 Mo. 598; Frieland v. Williamson, 220 Mo. 217. (a) And even though an exception be duly saved, it may not be considered on appeal unless it is also brought to...
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