Hale v. St. Joseph Railway, Light, Heat & Power Comany
| Decision Date | 09 April 1921 |
| Parties | STEPHENS M. HALE, Appellant, v. ST. JOSEPH RAILWAY, LIGHT, HEAT & POWER COMANY |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. L. A. Vories, Judge.
Reversed and remanded.
John S Boyer for appellant.
Defendant's instruction 1 is erroneous. It sets up a different measure of duty for the motorman than that prescribed in the ordinance requiring a vigilant watch for vehicles or persons moving towards the track, and requiring the going to be rung in quick succession on approaching any carriage or person. This instruction excuses the motorman from sounding the gong in quick succession until there is actual danger. This is not the law. The ordinance requires a warning signal in quick succession on approaching any person whether in danger or not. The very purpose of a signal is to warn a person so that he may avoid danger. This instruction is in conflict with plaintiff's instructions 2, 3 and 4. It purports to cover the whole case and directs a verdict, but ignores alleged and proven acts of negligence. Hovarka v. Transit Co., 191 Mo. 441. Defendant's instruction 2 is erroneous. It purports to cover the whole case and directs a verdict but omits alleged and proven acts of negligence per se. It entirely omits the negligence of defendant and the duty of the motorman to sound a gong when approaching plaintiff, and authorized a verdict for the defendant even though the jury might find and believe that the motorman violated the Bell Ordinance and that this failure caused the injury. It is in conflict with plaintiff's instructions 2 and 4, denning defendant's duty to sound the gong and permitting plaintiff to recover if defendant's negligence to sound the gong caused the injury. It is also contrary to the provisions of the Vigilant Watch Ordinance and omits the negligence of defendant. It not only excuses defendant from giving a signal when approaching plaintiff but limits the duty of defendant to bring its car under control and to take steps to avoid the injury only after plaintiff is in actual danger. This is not the law. Independent of the ordinance and where a case is submitted on the humanity rule alone it is for the jury to say whether the giving of an alarm would have aided in preventing the injury, and whether or not the motorman took proper steps to bring the car under control when in the exercise of proper care he saw, or could have seen plaintiff going into danger. The motorman was not entitled to wait until the danger was imminent. Holzmer v. Railway, 261 Mo. 408; Ellis v. Railway, 234 Mo. 680; Dutcher v. Railroad, 241 Mo. 165; Kinlen v. Railroad, 216 Mo. 162; Cytron v Transit Co., 205 Mo. 719; Deschner v. Railway, 200 Mo. 331; Kinzeman v. Railroad, 182 Mo. 625.
Robert A. Brown and Richard L. Douglas for respondent.
(1) The ordinance requiring the sounding of a gong upon a street car under certain circumstances, does not require that the gong shall be so sounded on the approach of any carriage or person toward the railway track. It requires the gong to be sounded in quick succession only when the street car is approaching some carriage or person. This necessarily means that the gong shall be sounded in quick succession only when the carriage or person is on the railway track or in a position of peril. It is the well-settled rule that the motorman upon a street car has the right to assume that any person approaching the track will stop and not pass over the same immediately in front of an approaching car, and it is only when a vehicle or person is in a position of danger, or when the motorman can see that such carriage or person will be in a position of danger that he is required to give a warning of danger or to slacken the speed of his car. Boyd v. Ry. Co., 105 Mo. 371; Draper v. Rys. Co., 199 Mo.App. 490; Flack v. Railroad, 162 Mo.App. 650; Frank v Transit Co., 112 Mo.App. 496; Dutcher v. Railroad, 241 Mo. 165; Deschner v. Railroad, 200 Mo. 331. (2) If plaintiff was guilty of negligence in going upon defendant's railway track under the circumstances disclosed by the evidence, then under the well-settled law of this State, the defendant owed him no duty other than to exercise ordinary care to stop its car and to prevent injuring him. Grout v. Electric Ry. Co., 125 Mo.App. 560-562; Holland v. Railroad, 210 Mo. 351; Moore v. Lindell Ry. Co., 176 Mo. 545. (3) When one testifies that he looked for an approaching car and saw none, when the facts show that had he looked he must have seen, the Courts say that he in fact did see, and that his statement to the contrary will avail him nothing. Peterson v. Rys. Co., 270 Mo. 75; Murray v. Railroad, 176 Mo. 183; Mockowik v. Railroad, 196 Mo. 550; Underwood v. West, 187 S.W. 86.
SMALL, C. Brown and Ragland, CC., concur.
Suit for personal injuries arising from collision with defendant's street car in the City of St. Joseph.
The petition alleged: That on January 30, 1918, plaintiff was driving a horse and wagon across defendant's railway tracks on Lafayette Street between 16th and 17th Streets. That before plaintiff had an opportunity to entirely cross said tracks, and without any signal, warning or notice to plaintiff, defendant's servants negligently and unlawfully ran one of defendant's street cars against the wagon in which plaintiff was riding, with great force and violence, whereby plaintiff was thrown from the wagon and greatly injured. That defendant's servants in charge of said car, either saw him and his vehicle on the tracks or approaching the tracks of defendant, or by the exercise of proper care could have seen him and said vehicle in time to stop the car before striking the wagon. That said servants of defendant carelessly failed to keep a vigilant watch for vehicles and persons, either on the tracks or moving toward them, and carelessly failed to stop said car in the shortest time or space possible on the first appearance of danger to plaintiff, and carelessly failed to sound a gong or give any warning to plaintiff of the approach of said car. By reason of all which plaintiff was injured. That all of said acts of defendant were in violation of the ordinances of the city of St. Joseph, Missouri, and in violation of the law of the land. Plaintiff asked judgment for $ 10,000.
The answer admitted the ownership of the street car which collided with the plaintiff, denied all other allegations of the petition, and pleaded contributory negligence.
The plaintiff testified: That he was employed by his sons. Kept his horse and wagon at home between 16th and 17th Streets. That about one o'clock, on the day he was injured, he hitched his horse to go to the shop, and started north along the alley back of his house. The alley was a little up grade going north to Lafayette Street, which had double streetcar tracks on it. The street cars turned onto Lafayette Street coming north, half a block from where this alley intersected Lafayette Street. Plaintiff drove directly north, and when he got out of the alley, so he could see, there being a building on the southwest corner of said alley and Lafayette Street, he looked on the street and saw no car and heard no bell. He drove right along at the regular gait, did not see or dream of any danger. The horse was old, but "fairly at himself in every respect." He had driven the horse about ten years. The first he knew of the street car was when it was all over and somebody sat him up in the wagon. He thought he was able to go on to the shop. When he got there and got out of the wagon, he fell to the ground from his injuries, and was suffering with pain in his shoulder, neck and head. The street car people came after him and took him down to the doctor's office, where they gave him medical treatment for about three weeks. He was hurt in the hip and the side and otherwise. On cross-examination, he said: The barn where he kept his horse and wagon bordered on the alley and when he got to Lafayette Street, he looked and saw nothing from either way, nothing on the street at all, and heard no noise. He knew the car tracks were there. He had to pass the big barn on the southwest corner of Lafayette Street and the alley to look west. At that time, the horse's head would be passed the middle of Lafayette Street, between the curb and the middle of the street. From the barn to the south track was about 20 feet. The entire length of the horse was out in the street before he could look west. Looked west, but not until he could see all the way through; when he looked he saw clear down to 16th Street, which was one-half a block away. The car that went east came north on 16th and then turned east on Lafayette Street. Guessed cars cannot go fast around corners; they slow down then. When he looked west and saw no car on Lafayette Street, he went straight across the tracks. Did not look west after that. Did not know the car struck his wagon, until after he came to sitting in his wagon. Did not see nor hear the street car before it struck. His hearing was pretty good, "fair to middling, or a little better." His sight very good. No wagons on the street. Nothing to prevent his seeing down to 16th Street. His horse walked tolerably fast across the street. Witness was here shown a paper, which he said he did not sign. The signature shown him did not look exactly like his; if he wrote it, it was when "I didn't know anything." It was not his writing at all. Witness denied stating to anyone that as he drove into Lafayette Street he heard a car turning at 16th Street. Also denied stating he had time to cross the tracks, and that when his horse was on the track, he started to hurry the horse across and he slipped and before he could get his footing the car collided with the...
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