Harrington v. Dunham

• Decision Date: 16 February 1918
• Parties: M. J. HARRINGTON, Appellant, v. R. J. DUNHAM et al
• Court: Missouri Supreme Court

202 S.W. 1066

273 Mo. 414

M. J. HARRINGTON, Appellant, v. R. J. DUNHAM et al

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from Jackson Circuit Court. -- Hon. Kimbrough Stone, Judge.

Reversed and remanded.

John D Strother, Ingraham, Guthrie & Durham and Hale Houts for appellant.

(1) The court erred in giving instructions "AA" and "2," and each of them. These instructions withdrew from the consideration of the jury issues of negligence which plaintiff was entitled to submit. (a) By "AA" the court erroneously instructed the jury that defendants' motorman was guilty of no negligence after he saw the plaintiff in a position of peril. This in effect told the jury that in determining whether or not the failure to stop at the safety was negligent, the jury could consider nothing the motorman did or failed to do after he saw the plaintiff in a position of peril; thereby withdrawing many acts of negligence of which there was ample evidence. Laison v Transit Co., 192 Mo. 449. (b) The court erred in telling the jury in instruction "2" that there was no evidence that the car was being operated at a negligent or careless speed. Even had there been no evidence of the rate of speed, the fact that the car crashed by the stop into plaintiff and carried the outfit to the far edge of the road despite the motorman's efforts to stop, made the issue one for the jury. Heinzle v. Metropolitan, 182 Mo. 528; Beier v. Transit Co., 197 Mo. 215; Felver v. Met. St. Ry. Co., 216 Mo. 214; Brandt v. Railway Co., 153 Mo.App. 16. (c) From the undisputed evidence either one of two conclusions is irresistible, first, that the car was going too fast, or, second, that the motorman was negligent after he saw plaintiff in a place of peril. The motorman admitted that he knew of the safety stop, knew the track, was intending to make the stop, could see the crossing for 500 feet, and that plaintiff's horses came out from behind the power house upon the tracks before he began to use the appliances at hand to make the safety stop. Certainly, if the rate of speed of the car had not been negligent and the motorman had exercised ordinary care in the use of brakes and other appliances the safety stop would have been made. (2) The giving of defendants' instructions 4 and 6, constituted reversible error, for the reason they too broadly defined the issue of contributory negligence by the use of the words "any negligence" and "negligent in any manner." Benjamin v. Metropolitan, 245 Mo. 612; Williams v. Lamp Co., 173 Mo.App. 87; Miller v. Engle, 185 Mo.App. 580. (3) It was error to give instructions 5 (modified) and 8, for the reason that in these instructions the court ignored the safety stop custom and the right of plaintiff to presume that the custom would be observed. Percell v. Met. St. Ry. Co., 126 Mo.App. 43; Scott v. Met. St. Ry. Co., 138 Mo.App. 196; Riska v. Railroad, 180 Mo. 168, 190; Eckhard v. Transit Co., 190 Mo. 593, 617; Moon v. Transit Co., 237 Mo. 425; Taylor v. Met. St. Ry. Co., 166 Mo.App. 131. (4) Instruction 8 was also erroneous for the reason that it failed to require the jury to find that the plaintiff's negligence therein submitted, if they should find any, was the proximate contributing cause of his injury. Oats v. Met. St. Ry. Co., 168 Mo. 535, 548; Gail v. Car Co., 177 Mo. 427. (5) The instructions of defendant when read together amounted in effect to a peremptory instruction to find for defendants.

Clyde Taylor and L. T. Dryden for respondents.

(1) Instruction "AA," given by the court of its own motion, told the jury that the alleged negligent act of failing to give signals was withdrawn from their consideration as a ground of recovery. There are two reasons why this was proper. (a) There was no evidence of a failure to give the signals as the car approached the street. (b) Had no signals been given it would have made no difference and such failure would not have been the proximate cause, for the reason that appellant saw the car and knew of its approach; but as he said relied entirely upon the custom to stop the car before crossing the street road. A negligent act affords no ground of recovery unless it is the proximate cause of the injury. Jackson v. Butler, 249 Mo. 342; Strayer v. Railway, 170 Mo.App. 514; Heinzle v. Railway, 182 Mo. 528; Lyman v. Dale, 156 Mo.App. 427; O'Connell v. Railway, 149 Mo.App. 501; Hull v. Transfer Co., 135 Mo.App. 119. (2) The appellant cites but one case in support of his criticism of this point. Latsin v. Transit Co., 192 Mo. 449. This case is not in point at all, and in that case the plaintiff was driving along the track a distance of 469 feet in plain view of the motorman, and vehicles going in the opposite direction prevented the plaintiff in that case from getting off the track, and the motorman had but to look to see the situation. While in the case at bar, the plaintiff testified that his horses came upon the track when the car was just south of the power-house, and close to him, and then whipped his horses up, attempting to go on across the track. The motorman testified that as soon as he saw the horses' heads appear on the track, he attempted to stop the car, and put on the airbrake, but he saw it was not going to stop on account of the rail being slick, and it being down-grade, and then he released the air and reversed, and then had an overhead blowout. The evidence in the case corroborated the motorman and showed that the collision was unavoidable so far as he was concerned, and due to this overhead blowout, and also to the contributory negligence of the appellant in driving his team on or across the track when he saw the car close to him, when by stopping he could have avoided the collision. (3) There was no evidence whatever that the car was being operated at a careless or high rate of speed. This being one of the distinct acts of negligence alleged in plaintiff's petition, and there being no evidence of any kind or character to support it, it was the duty of the trial court, upon motion of defendant, to eliminate this ground of recovery from the consideration of the jury, which he did. (4) But had there been evidence that the car was being operated at a high rate of speed, in order that it might be the proximate cause of the accident, it would have to be shown that the appellant had knowledge of the regular and ordinary rate of speed of the car, and that he relied upon the car being operated at this rate and was thereby entrapped or deceived into driving upon the track. See authorities above cited. (5) All the instructions in a case must be read together, and if when so read as a whole they fairly present the issue, this is sufficient. This is clearly true in this case, as will be shown by reference to several instructions given in the case. The evidence showed that appellant was negligent in attempting to cross the track in front of the car, relying wholly and entirely upon the safety stop. The case was tried and submitted upon this theory. (6) Instructions 5 and 8 pointed out the negligent acts of appellant, if the jury believed from the evidence him to be guilty of such acts as would preclude a recovery. So that the particular acts of negligence upon the part of the appellant were clearly and properly set forth in these instructions, and when all the instructions are read together, they surely could not have been misled. Hoover v. Coal Co., 160 Mo.App. 326; Wilson v. United Rys., 169 Mo.App. 405; Jackson v. Telegraph Co., 174 Mo.App. 70; Patterson v. Evans, 254 Mo. 293; Tawney v. United Rys., 262 Mo. 602; Barrett v. Delano, 187 Mo.App. 501; Evers v. Ferry Co., 127 Mo.App. 236; Batten v. Modern Woodmen, 111 S.W. 513. (7) It was plaintiff's duty to look and listen, and it was for the jury to determine the question of fact. Products Co. v. United Rys., 185 Mo.App. 310; Burnham v. Railroad, 175 Mo.App. 286; Cole v. Met. St. Ry. Co., 121 Mo.App. 605; Owens v. Railway, 188 Mo.App. 450; Huggart v. Mo. Pac., 134 Mo. 673; Kelsay v. Mo. Pac., 129 Mo. 362; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566. (8) Instruction 8 states the acts of the appellant, which, if the jury believe to be true, would amount to such negligence upon his part as to prevent a recovery. If any error was committed in this case by the trial court, it was in overruling respondents' demurrer to all the evidence, because appellant's own testimony showed himself guilty of such negligence as to prevent a recovery in the case. Schmelzer v. Metropolitan, 166 Mo.App. 204; Guffey v. Harvey, 179 S.W. 729; Byerley v. Metropolitan, 172 Mo.App. 470; Products Co. v. United Rys., 185 Mo.App. 310; Burnham v. Railway, 175 Mo.App. 286; Cole v. Met. St. Ry. Co., 121 Mo.App. 605; Owens v. Railway, 188 Mo.App. 450; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Kelsay v. Railroad, 129 Mo. 362.

WHITE, C. Roy, C., concurs.

OPINION

WHITE, C.

The plaintiff sued for injuries received by collision with a street car operated by defendants. There was a verdict for the defendants and the plaintiff appealed.

The place where the collision occurred was at the intersection of Blue Avenue and the defendant's street railway tracks at a point between Kansas City and Independence. At that point Blue Avenue runs practically east and west, and two parallel street-car tracks cross it running north and south. Blue Avenue was a hundred feet wide, with a macadamed track down the centre twenty-six feet wide. Along the east side of the street-car tracks, and on the south side of Blue Avenue, was situated the power-house of the street-car company, sixty-six feet in length north and south, and thirty-three feet wide east and west.

The west side of the power-house was...