Heigold v. United Rys. Co.

• Decision Date: 13 April 1925
• Docket Number: No. 25001.,25001.
• Parties: HEIGOLD v. UNITED RYS. OC. OF ST. LOUIS.
• Court: Missouri Supreme Court

271 S.W. 773

HEIGOLD v. UNITED RYS. OC. OF ST. LOUIS.

No. 25001.

Supreme Court of Missouri, Division No. 1.

April 13, 1925.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

Action by Arthur C. Heigold against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and John F. Evans, both of St. Louis, for appellant.

Mark D. Eagleton, of St. Louis, for respondent.

GRAVES, J.

Action for personal injuries. Plaintiff was a pedestrian crossing Union avenue in the city of St. Louis, when he was struck by one of defendant's street cars, at the time operated upon and over such avenue. The date of injury is fixed as of December 6, 1916. The acts of negligence pleaded in the amended petition upon which the cause was tried are as follows:

"That plaintiff was Struck by defendant's said street car and injured on account of, and as the direct result of, the negligence and carelessness of defendant, its agents and servants as follows, to wit, that, on said occasion, the defendant, its agents and servants, negligently and carelessly ran and operated said street car at a high and dangerous rate of speed, to wit, more than 20 miles an hour; negligently and carelessly failed and omitted to sound a bell or give other warning of the approach of said car; negligently and carelessly failed and omitted to exercise ordinary care to slacken the speed of, or stop, said car after defendant saw, or by the exercise of ordinary care on its part would have seen, plaintiff in a position of peril, in time, by the exercise of ordinary care and with safety to the passengers and other persons on said street car, to have stopped said street car, or slackened the speed thereof, and avoided injuring plaintiff.

"Plaintiff further states that on or about said 6th day of December, 1916, there was in force within the city of St. Louis, Mo., an ordinance of said city by which it was provided that motorman and conductors in charge of street railway cars should keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles such cars should be stopped within the shortest time and space possible, and plaintiff avers that at and before the time that said street car struck and injured plaintiff, as aforesaid, the motorman and conductor in charge of said street car negligently and carelessly failed and omitted to keep such vigilant watch, and on the first appearance of danger to plaintiff failed and neglected to stop said car in the shortest time and space possible with safety to the passengers and other persons on said street car.

"Plaintiff further states that at said time there was in full force and effect an ordinance which provided, in effect, that every motorman, gripman, or other person in charge of said car, while operating any such car, should bring the same to a full stop at a regular crossing or appropriate place designated for reception of passengers, whenever such motorman should have been signaled by any such person desiring to board such car, and plaintiff states that the defendant at the time and place aforesaid did negligently fail and refuse to bring its car to a full stop after it had been signaled by passengers who were waiting to board said car at said intersection and at a place there designated for such stop, and where defendant had for a long period of time theretofore customarily and habitually stopped for such purpose, upon all of which plaintiff upon said occasion relied, expecting said car to stop, and defendant did negligently cause, suffer, and permit its said car to be run into the plaintiff after having passed said intersection."

The amended answer, filed December 6, 1922, is (1) a general denial; and (2) pleas of contributory negligence. Reply was a general denial. Plaintiff, upon the conclusion of the trial, had a verdict for $15,300. From a judgment upon such verdict, the defendant has appealed.

For the plaintiff, the cause was submitted to the jury upon the following principal instruction:

"The court instructs the jury that, if you find and believe from the evidence that on the 6th day of December, 1916, the defendant was engaged in the business of owning and operating street cars as a carrier of passengers for hire, in the city of St. Louis, Mo., and if you find that it then owned and operated a line of street railway known as the Union avenue line, along Union avenue, in the city of St. Louis, Mo., and if you find that said Union avenue was an open public street and highway in the city of St. Louis, Mo.; and if you find that on December 6, 1916, defendant maintained a street car track in said street and operated street cars upon and along said track, and if you further find and believe from the evidence that on said 6th day of December, 1916, the plaintiff was traveling on foot upon said Union avenue, and either on or moving towards defendant's said street car track there (if you do so find), and that one of defendant's said Union avenue line street cars was then and there operated by defendant along said track toward the plaintiff, and if you find and believe from the evidence that defendant's motorman in charge of and operating said street car (if you do so find) by keeping a vigilant watch for persons moving towards or upon the defendant's said track would and could have seen the plaintiff upon or moving toward said track and in danger of being struck by said street car (if you find plaintiff was in such danger), and that thereafter, by stopping said car within the shortest time and space possible under the circumstances, with due regard for the safety of the street car and the passengers thereon, would and could have avoided colliding with plaintiff, and if you find that he failed and neglected to do so, and if you find that said car did then and there collide with and injure the plaintiff, and if you find that said collision, if any, and plaintiff's injuries, if any, directly and proximately resulted from the failure of defendant's motorman to keep such vigilant watch (if you find that he did fail to do so), or failure to stop said car in the aforesaid time and space and under the aforesaid circumstances (if you find that he did so fail), then your verdict must be in favor of plaintiff and against the defendant."

Counsel for appellant have made assignments of error covering only two questions, as follows:

"I. Said court erred for the reasons set out in' point I of points and authorities in giving and reading to the jury instruction No. I on behalf of plaintiff.

"II. Said court erred for the reasons set out in point II of points and authorities in failing and refusing to set the verdict aside on the ground that it is excessive."

The questions for discussion fall into a small compass, by reason of the assignments of error, supra. The facts will be taken in connection with the two points urged.

I. The record shows that at the close of plaintiff's case the defendant asked an instruction in the form of a demurrer to plaintiff's evidence, which was overruled and defendant excepted to the action of the court. Such an instruction was not renewed at the close of the whole case, and the refusal of the one at the close of plaintiff's case is not assigned as error, in the assignments of error. As shown in our statement there are but two assignments of error, which we have quoted in full. From it all it is apparent that defendant has abandoned the idea that plaintiff made no case for the jury, if in fact it ever seriously considered that such was the case. In view of the assignments of error (which are the sole questions for our consideration), we do not have the sufficiency of proof to make a case for the jury before us on this appeal.

Defendant in its assignment of errors does not urge the question, and it is not for the court to urge such question for defendant. The first assignment of error is peculiar, in that it refers to the first point of "points and authorities" for the specifications, and this point only urges the contributory negligence of the plaintiff. So, going to all the matters urged by assignment No. I, the defendant is not now insisting that the defendant was not guilty of negligence at the time and place of the accident. At least that particular question is out of the consideration now.

II. A careful reading of instruction No. I given for the plaintiff shows that this case was submitted to the jury under the vigilant watch ordinance of the city of St. Louis. Under its point I the defendant urges that this instruction was erroneous. First it is said that plaintiff was guilty of contributory negligence as a matter of law, and this in the face of the fact that defendant has abandoned here its demurrer to the evidence, as pointed out previously. After much division of opinion, and long consideration, this court finally reached the conclusion that the vigilant watch ordinance placed upon a street railway a greater degree of care, than mere ordinary care prescribed at common law. Not only so, but a greater decree of care (in some places) than imposed by the humanitarian rule. State ex rel. Vogt v. Reynolds, 295 Mo. 375, 244 S. W. loc. cit. 933. Among other things at page 933 of the Vogt opinion, we said (295 Mo. 388):

"Vigilant watch contemplates a sort of eager, sustained attention. `Vigilant' is defined by Webster's New International Dictionary as `alert, watchful, as one keeping vigil.' * * * Applying this definition, `vigilant watch' means a watchful watch, an attentive watch. Common-law care would permit the motorman on less used streets to relax somewhat and to assume that people and vehicles will stop before actually reaching and entering the danger zone; or, if already within such zone, that they will leave it in good time. The vigilant watch ordinance requires the motorman to be prepared to...