Guiney v. Southern Electric Railroad Company
| Decision Date | 12 March 1902 |
| Citation | 67 S.W. 296,167 Mo. 595 |
| Parties | GUINEY, Appellant, v. SOUTHERN ELECTRIC RAILROAD COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.
Affirmed.
Virgil Rule and Jesse A. McDonald for appellant.
(1) (a) The giving of instruction 10 was error because it placed upon plaintiff's intestate a higher degree of care than is required of a fireman in responding to an alarm of fire, and declares as a matter of law a failure to look and listen is under all circumstances negligence. Smith v Railroad, 61 Mo. 591; Olsen v. Railroad, 152 Mo. 430; Magee v. Railroad, 151 Mass. 241; Warren v. Mendenhall, 79 N.W. 661; Donahoe v Railroad, 83 Mo. 560; Schroeder v. Railroad, 108 Mo. 322; Railroad v. Jacobs, 101 Ala. 149. (b) Whether a failure to look and listen is negligence in this case, was a question of fact for the jury. And an instruction which declares a failure to look and listen negligence without further declaring that by looking and listening he would have seen and heard in time to have avoided injury to himself, is prejudicial error. Johnson v. Railroad, 77 Mo. 553; Kelsay v. Railroad, 129 Mo. 372; Jones v. Barnard, 56 Mo.App. 512. (c) Instruction 10 should have been refused because there was absolutely no evidence that Jere Guiney did not look and listen. It is error to give an instruction if there is no evidence upon which to base it. Williams v. Railroad, 96 Mo. 275; Evans v. Railroad, 106 Mo. 594; Graham v. Gross, 50 Mo.App. 377; Seckinger v. Philibert, 129 Mo. 591; 2 Pat. Complete Dig., 542, 543; Mammerbeg v. Railroad, 62 Mo. 563. (2) The several ordinances of the city of St. Louis, relative to the fire apparatus having the right of way and to the operation of street railroads were properly admitted in evidence and were binding on defendant. Jackson v. Railroad, 157 Mo. 642; Chouquette v. Railroad, 152 Mo. 247; Cooney v. Railroad, 80 Mo.App. 230. (3) Instruction 11 should have been refused because it exonerated defendant's motorneer from all negligence prior to the time his car reached the intersection of the streets. (4) The court should have sustained the plaintiff's motion for a new trial because the verdict was not supported by the evidence.
Lubke & Muench for respondent.
(1) The instructions given for defendant must be read in connection with those given for the plaintiff. When this is done here it will readily be seen that the criticisms of appellant upon the last two instructions given for defendant are wholly without merit or foundation. Henschen v. O'Bannon, 56 Mo. 289; Easley v. Railroad, 113 Mo. 236; Burdoin v. Trenton, 116 Mo. 358. "The instructions are to be taken as a whole, are so taken by men of common understanding, and can be understood in no other way." Owens v. Railroad, 95 Mo. 181; Hughes v. Railroad, 127 Mo. 452; Deweese v. Mining Co., 128 Mo. 423; Gordon v. Burris, 153 Mo. 237. (2) The last two instructions given for defendant were both correct and directly in line with the previous decisions of this court. It was for the jury to determine whether or not he drove his horses directly over the lifeguard of the car recklessly because he was not looking or listening. And it was also for them to determine whether or not the motorman had done everything he could to stop the car "on the first appearance of danger," and whether or not he had brought it to a standstill in the middle of Gratiot street so that the north half of the street crossing was open to Guiney for his "right of way." Smith v. Railroad, 61 Mo. 592. One who is about to cross a railroad track at a street or public crossing must look and listen for a train where by listening he can hear and by looking he can see an approaching train, and the omission of either would be such negligence on his part as to prevent a recovery. And he is not relieved of such duty even though the company may have been derelict in the performance of its duty in giving the statutory signal. He must use both his eyes and ears to avoid injury. The duty continues until the dangerous locality is passed. Boyd v. Railroad, 105 Mo. 371; Butts v. Railroad, 98 Mo. 272; Stepp v. Railroad, 85 Mo. 229; Lenix v. Railroad, 76 Mo. 86; Zimmerman v. Railroad, 71 Mo. 476. The rule is also applicable to cable and electric street railway crossings. Smith v. Railroad, 52 Mo.App. 36; Sonnenfeld v. Railroad, 59 Mo.App. 668; Culbertson v. Railroad, 140 Mo. 63. (3) When both parties are guilty of negligence which contributes directly to the injury, there can be no recovery of damages by or for the injured party. This rule is without exception or qualification. Hogan v. Railroad, 150 Mo. 36; Corcoran v. Railroad, 105 Mo. 399. Where the negligence of the parties is mutual, there can be no recovery. Murray v. Railroad, 101 Mo. 236; Kellny v. Railroad, 101 Mo. 67; Dougherty v. Railroad, 97 Mo. 667. (4) Instruction 10 was not erroneous in assuming that by looking and listening Guiney could have seen the car. The evidence was all one way as to this. Sitting on the front of the open fuel wagon, he had a plain view of the top of the moving car and of the trolley pole, which indicated the direction the car was going, and with the car top and pole in his plain view, he could also, by giving attention, have heard the car. Culbertson v. Railroad, 140 Mo. 63; Dickson v. Railroad, 104 Mo. 491; Pope v. Railroad, 99 Mo. 400; Walker v. Kansas City, 99 Mo. 647; Bank v. Hatch, 98 Mo. 376.
OPINION
This is an action by the widow of Jeremiah Guiney, deceased, to recover the statutory damages of $ 5,000 for the death of her husband, which resulted from injuries received by him in a collision between a wagon and team being driven by him, and one of the cars of the Southern Electric Railroad Company, at the crossing of Sixth and Gratiot streets in the city of St. Louis, which occurred on the eleventh of February, 1898. The verdict was for the defendant, and the plaintiff appeals. The cause of action stated in the petition was negligence of the defendant's employees in the management of its car. The answer, a general denial, and a plea of contributory negligence, upon which issue was joined by reply. No question is raised upon the pleadings, or the action of the court in the admission or exclusion of evidence.
Gratiot street runs east and west, and is about thirty feet wide. Sixth street runs north and south, and upon it is located the defendant's double track. The deceased was an employee of the fire department of said city and engaged in driving one of the fuel wagons of the department (a two-horse wagon about five by twelve feet in size equipped with a gong, and loaded with about twenty-five bushels of coal). Prior to the collision, in response to a fire alarm, the fire engine and hose reel belonging to the same services with this fuel wagon, going west on Gratiot street, passed over this crossing and out of sight and hearing therefrom. About ten or fifteen minutes later the deceased driving the fuel wagon and following after in the same direction, approached this crossing at a rapid rate of speed, one of his horses galloping, the other trotting. At the same time defendant's car going north on Sixth street approached the crossing from the south. On the east side of Sixth street there was a board fence about twelve feet high extending from the south side of Gratiot street south along the east side of Sixth street about one hundred feet, which prevented the motorman and those on the car, while traveling that distance toward the crossing, from seeing the approaching wagon and team. But the deceased from his position on the wagon while traveling the same distance on Gratiot street could see the trolley and the top of the car on Sixth street approaching the crossing. The wagon and car each proceeded on its way until they collided, somewhere between the center and north line of Gratiot street. By the contract the front wheels of the front truck of the car were thrown from the track and the fender bent. The left hind wheel and tongue of the wagon were broken. The deceased was thrown from his seat to the ground, receiving the injuries from which he soon thereafter, on the same day, died. He never checked the speed of his team from the time he came in view of the trolley and the top of the car, but when within a few feet of the car, seems to have deflected his team from its course, to the right, the horses jumping over the fender and breaking the tongue, the front wheel of the wagon catching in the drawhead, and a hind wheel behind the fender.
The evidence of other facts in the case is conflicting. That of the plaintiff tended to prove that the gong on the wagon was being sounded continuously from Broadway, the next street east until the wagon reached the crossing; that the car was going at a rapid rate of speed, and was not checked until the collision took place; that the bell on the car was not heard by persons in the neighborhood, and that the car struck the wagon. That of the defendant tended to prove that the gong on the wagon was not heard by the motorman, the conductor or passengers on the train; that the power was thrown off the car about two hundred feet south of the crossing, and thereafter the bell was continuously rung, the train slowing down until the crossing was reached when the train going slowly, the wagon and team became visible, the brakes were immediately applied and the car was struck by the wagon and team, as it was about to stop.
The case was submitted to the jury on the following instructions:
To continue reading
Request your trial