Goff v. St. Louis Transit Co.
| Decision Date | 04 December 1906 |
| Citation | 98 S.W. 49,199 Mo. 694 |
| Parties | GOFF v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Gasconade Circuit Court. -- Hon. Wm. A. Davidson, Judge.
Affirmed.
Boyle & Priest, J. C. Kiskaddon and B. L. Matthews for appellant.
(1) The court erred in refusing to give a demurrer to the evidence asked by defendant at the close of plaintiff's case, and also in refusing to give it at the close of the whole case. Plaintiff introduced no evidence tending to show that the lights were dim or the headlight insufficient at the place of the casualty, or that the motorman was not then at his post or that he was not then keeping a lookout ahead, or that he failed to give a warning to deceased. Nor did plaintiff introduce the slightest evidence even tending to prove that a failure to lookout ahead, or a failure to give a warning, or an insufficient headlight, or the failure of the motorman to be at his post was the proximate cause of the death of deceased. All these things are left to mere conjecture. It was possible that one of these things might have been the proximate cause of his death, but the plaintiff did not prove it. The alleged acts of negligence were too remote from the actual occurrence. There is nothing to show how deceased got on the track, what his position was on the track, or whether he was dead or living when the car struck him, if it did. On the other hand, defendant's undisputed evidence removes even the conjecture. Conceding that the car had a poor headlight, and that when the car passed Robbins avenue the motorman was not at his post, and that is all plaintiff's evidence does prove, then it is shown by undisputed evidence that the motorman was at his post when the car passed Chapman's and at the time of the casualty; that deceased had gone onto the track and laid down thereon, that on account of his position he could not be seen in time to stop the car and avoid striking him, and there is nothing else to indicate dereliction of duty on the part of the motorman. The mere fact that deceased was killed, if he was killed by the car, is not sufficient to charge defendant with negligence. Yarnell v. Railroad, 113 Mo. 579; Harlan v Railroad, 65 Mo. 25; Powell v. Railroad, 76 Mo 83; Stokes v. Burns, 132 Mo. 223; Christy v. Hughes, 24 Mo.App. 275; Sappington v. Railroad, 95 Mo. 393; Hogan v. Railroad, 150 Mo. 52; Campbell v. Railroad, 175 Mo. 178; Glover v. Railroad, 153 Mo. 337. (2) The court erred in admitting evidence of the speed of the car. There is no allegation in the petition that speed was an act of negligence. If there had been an allegation in the petition that the motorman had negligently failed to stop the car after the dangerous position of deceased on or near the track was discovered, or might by the exercise of ordinary care have been discovered, and there was a question whether, at the speed the car was running, it could by the exercise of ordinary care have been stopped or not, then it might be pertinent. But there is no such allegation in the petition. Nor did plaintiff offer to introduce evidence that, considering the speed of the car, it might have been stopped after the dangerous position of deceased had been discovered, or by the exercise of ordinary care ought to have been discovered. In connection with this subject it is insisted that instruction 5 is erroneous. The instruction as originally asked by defendant is No. 7. The court refused it as asked, and modified it by striking out the words "even though the jury may believe the headlight and other lights in the car were dim, and that the motorman failed to give deceased any warning of the approach of the car," at the end of the instruction, and substituting for the foregoing words in quotation marks the words, "unless you further find that at the time the deceased was struck and injured the lights were so dim that by the exercise of ordinary care he could not have seen the car in time to step aside and avoid the injury, or that the car was run at such high rate of speed as to have caused the injury." There being no allegation in the petition that speed was negligence, it was error to give this instruction or admit evidence of speed. And neither the exceptions to the evidence nor to the giving of this instruction are waived by failure to except to the first instruction given at the instance of the plaintiff. Ely v. Railroad, 77 Mo. 35; Barker v. Railroad, 126 Mo. 151; Schierbaum v. Schemme, 157 Mo. 22; Moffatt v. Conklin, 26 Mo. 457; Glass v. Gelvin, 88 Mo. 301; Mansur v. Botts, 80 Mo. 658; Yarnell v. Railroad, 113 Mo. 578; Krueger v. Railroad, 94 Mo.App. 462; Heinzle v. Railroad, 182 Mo. 559.
A. R. Taylor for respondent.
(1) There was sufficient evidence to take the case to the jury on the evidence presented for the plaintiff, of the negligent running of the car along a public highway in black darkness without sufficient light to enable a pedestrian to see and escape the car. The deceased, being lawfully on the track where he had aright to be, and where pedestrians walked, as defendant's evidence showed as well as plaintiff's, was not a trespasser or negligent per se in so doing. Henry v. Railroad, 113 Mo. 536; Riska v. Railroad, 180 Mo. 168; Eckhard v. Railroad, 190 Mo. 593. (2) The law presumes in favor of the deceased that he was in the exercise of ordinary care at the time he was struck and killed. This is a rebuttable presumption, but the burden is on the defendant to rebut this presumption. The evidence must be clear and conclusive. In this case the defendant introduces evidence of its motorman and conductor that deceased had adjusted himself on the track, the head on the west rail and his feet on the east rail, so he could not escape. This evidence of design and elaborate preparation runs amuck, to a degree, with the evidence of the defendant's witnesses about his maudlin drunken condition. Most people, by observation or experience, well know that an undue portion of intoxicating liquors has a tendency to incapacitate the mind for accurate arrangement. The mind, to a degree, ceases to conceive method and order. One would hardly expect the man whom Miss Birdie Stille followed 900 feet in the night's darkness and peril, and in forgetfulness of the devastation to her spring hat, would be the same man who could use as much care and design in arranging his body for the execution as is told of Julius Caesar, when he folded his robe about himself to die at the foot of Pompey's statue. The jury did not believe, under this evidence, that this death was a sequence of the story recited by this witness. The same reasoning may be applied to the stilted story of the motorman and conductor. At last it was a question for the jury whether or not they should accept their story as true. The presumption of due care on the part of the deceased was not conclusively overthrown by such evidence. The jury might have believed the motorman and conductor on this issue, and they might not, with reason for either conclusion. (3) The presumption that a deceased person killed by a street car was exercising due care is not overthrown, even by the fact that he is seen to walk on a track ahead of an approaching car, and is killed by the car, though at the time deceased was carrying an umbrella pulled down close over his head to avoid rain. Riska v. Railroad, 180 Mo. 188; Weller v. Railroad, 164 Mo. 199; Eckhard v. Railroad, 190 Mo. 613; Buesching v. Gas Co., 73 Mo. 233. (4) But if the jury should have given full faith and credit to the motorman's and conductor's story, fishy and incredible as it was; and should also believe, as the conductor testified, that the deceased could have been seen on the track 75 feet ahead of the car, or Schambeck's, the road officer's, evidence, that, as deceased lay on the track in mute and drunken oblivion, he was readily to be seen 40 feet ahead of the car; and also believed the motorman when he says he stopped within 32 feet, here, again, we find, on the evidence of the defendant, a case of liability. For the law is now settled in this State that, however negligent a man may be in being upon a railroad track, yet if the operatives of the car saw him, or, in the exercise of ordinary care, would have seen him in peril and could thereafter, in the exercise of such care, have saved him, still the railroad is liable. Seaboard Co. v. Tolson, 39 U.S. 559; Railroad v. Ives, 144 U.S. 429; Reardon v. Railroad, 114 Mo. 406; Chamberlain v. Railroad, 133 Mo. 601; Klockenbrink v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707.
This is an action by Ellen Goff, the widow of Patrick Goff, for the negligent killing of said Patrick Goff by the defendant company by a street car operated by the defendant company, on the night of March 12, 1901.
The petition alleged, among other things, that at the time alleged Ferguson avenue, at the place mentioned in the petition, was an open public highway in St. Louis county, Missouri, and that at said time plaintiff was the lawful wife of Patrick Goff; that on the 12th day of March, 1901, in the evening and whilst it was dark, plaintiff's husband was lawfully upon Ferguson avenue, where defendant's railway track was upon said highway, when defendant's servants in charge of its car carelessly and without keeping a lookout ahead, and without giving any warning to plaintiff's husband of said approach of said car, ran said car on and against plaintiff's husband, crushing and killing him.
It is further averred that at the time of so killing her husband defendant, and its servants in charge of said car, were running said car upon said highway without any headlight or sufficient light to enable her husband to...
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