Hicks v. Citizens' Railway Company

• Decision Date: 09 July 1894
• Citation: 27 S.W. 542,124 Mo. 115
• Parties: Hicks et al. v. Citizens' Railway Company, Appellant
• Court: Missouri Supreme Court

27 S.W. 542

124 Mo. 115

Hicks et al. v. Citizens' Railway Company, Appellant

Supreme Court of Missouri, First Division

July 9, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

Smith P. Galt for appellant.

(1) The court erred in overruling defendant's objections to the questions propounded to the medical experts. Russ v Railroad, 112 Mo. 48. (2) The court erred in not sustaining defendant's demurrer to the evidence at the close of plaintiffs' case, and at the close of the entire testimony, and also in not sustaining the motion for a new trial, on the ground that there was no "evidence to support the verdict;" because there was no testimony tending to prove negligence on the part of defendant's employees, under the pleadings. Railroad v. Kelley, 102 Pa. St. 115; Hearn v. Railroad, 34 La. Ann. 160 162; Thomas v. Railroad, 132 Pa. St. 504; S. C., 47 Leg. Intel. 223; Boland v. Railroad, 36 Mo. 484; Gallaher v. Railroad, 37 La. Ann. 288; Railroad v. Carey, 56 Ind. 396; Railroad v. Isley, 49 N. J. Law, 468. (3) The court erred in refusing defendant's instruction number 1, as the only negligence alleged in the petition is the failure to ring the bell. The plaintiffs were restricted to their specific statement of their cause of action. Waldhier v. Railroad, 71 Mo. 514; Abbott v. Railroad, 83 Mo. 272; Ravenscraft v. Railroad, 27 Mo.App. 622; Fairgrieve v. Moberly, 39 Mo.App. 32. (4) The court erred in refusing defendant's instruction number 2, because the allegation of the petition is that the "plaintiffs were driving," if so, it was their duty to look and listen for the approaching car before they drove onto the track, and if there was danger of the buggy being struck by driving onto the track, which the testimony for defendant showed there was, and that the buggy was struck the instant it drove on the track, then it was their duty not to drive on and jeopardize themselves, which is the principle of law enunciated in that instruction. Meyer v. Railroad, 6 Mo.App. 27; Hickman v. Railroad, 47 Mo.App. 65; Smith v. Railroad, 52 Mo.App. 36; Boyd v. Railroad, 105 Mo. 371; Buzby v. Traction Co., 126 Pa. St. 559; Jatho v. Railroad, 4 Phila. 24; Johnson v. Railroad, 27 La. Ann. 53; McClain v. Railroad, 116 N.Y. 459; Kelly v. Hendrix, 26 Mich. 255, 261; Scott v. Railroad, 59 Hun, 456; 16 N.Y.S. 350; Sheets v. Railroad, 24 A. (N. J.) 483.

Seneca N. Taylor for respondents.

(1) The defendant's gripman was negligent in permitting the gripcar to collide with the buggy on the occasion in question. Persons using vehicles have the undoubted right to drive upon street railway tracks for the purpose of passing other vehicles, and active diligence is due from street railway companies to exercise reasonable care to prevent their cars from colliding with vehicles of persons exercising this right. Henry v. Railroad, 113 Mo. 535; Humbird v. Railroad, 110 Mo. 81; Rosenkranz v. Railroad, 108 Mo. 9; Senn v. Railroad, 108 Mo. 142; Hilz v. Railroad, 101 Mo. 55; Winters v. Railroad, 99 Mo. 517; Meyer v. Railroad, 43 Mo. 526; Liddy v. Railroad, 40 Mo. 519; Frick v. Railroad, 75 Mo. 595; Harland v. Railroad, 65 Mo. 24. (2) If it was imputed negligence on the part of Mrs. Hicks, which I positively deny, in being on defendant's track, in a buggy not driven by herself, still it was the duty of the gripman after seeing the buggy in danger, or by the exercise of ordinary diligence being able to have seen it, to have avoided the collision, if it could have been done by the exercise of ordinary care. Morrisey v. Ferry Co., 43 Mo. 384; Meyer v. Railroad, 43 Mo. 423; Brown v. Railroad, 50 Mo. 466; Meyers v. Railroad, 59 Mo. 231; Matthews v. Elevator Co., 59 Mo. 478; Harland v. Railroad, 60 Mo. 25; Dunkman v. Railroad, 95 Mo. 244; Werner v. Railroad, 81 Mo. 368; Bergman v. Railroad, 88 Mo. 683; Brown v. Railroad, 50 Mo. 461; White v. Railroad, 34 Mo.App. 74. (3) First. Contributory negligence is an affirmative defense, and the burden of proof rests on the defendant to establish it. O'Connor v. Railroad, 94 Mo. 150; Petty v. Railroad, 88 Mo. 306; Thompson v. Railroad, 51 Mo. 190; Beach on Contributory Negligence, sec. 157, p. 430, and cases cited. Second. It was not negligence per se, on the part of Mrs. Hicks' husband, in driving from forty to fifty feeet on defendants track, in order to pass by a vehicle standing between the rail and curb, though half of that distance defendant's train followed behind him within two or three feet. Swayne v. Railroad, 28 P. 829; Lynman v. Railroad, 114 Mass. 83; Cook v. Railroad, 98 Mass. 361; Heckenstein v. Railroad, 105 N.Y. 655; Railroad v. Easly, 49 N. J. L. 468; Adolph v. Railroad, 76 N.Y. 530; Rasher v. Railroad, 51 N.W. 463. See, also, cases cited under point 1. Third. If the testimony for plaintiff is true, Mr. Hicks was certainly not negligent. And where the facts are in dispute, or where the evidence tends to rebut the defense of contributory negligence, it is the duty of the court to submit the question of contributory negligence to the jury as was done in the case at bar. He was not her agent. It has been expressly decided that a married woman can have no agent, unless she is possessed of a separate estate. Hergman v. Stowe, 57 Mo. 93; Wilcox v. Todd, 64 Mo. 390; Hall v. Callahan, 66 Mo. 316; Hord v. Taubman, 79 Mo. 101; Henry v. Sneed, 99 Mo. 407; State v. Clay, 100 Mo. 471; Flesh v. Lindsey, 115 Mo. 18. Fourth. Moreover, it has been held, that, where a wife is riding with her husband in a private vehicle, and is injured by reason of his careless driving, his negligence will not prevent a recovery by her against a third person whose concurring negligence was the proximate cause of the injury. Railroad v. Creek, 14 L. R. A. (Ind. 1892) 733; Shaw v. Kraft, 37 F. 317; Kingston v. Musgrove, 18 N.W. 452; Hohan v. Railroad, 111 N.Y. 199; Miller v. Railroad, 128 Ind. 97; Platts v. Cohoes, 24 Hun, 101; Platts v. Cohoes, 89 N.Y. 219; Sheffield v. Telephone Co., 36 F. 164; Street v. Inhabitants, 105 Mass. 82; Joliet v. Seward, 86 Ill. 402. Fifth. This question has been decided by analogy in Missouri, it would seem, in the following cases: Winters v. Railroad, 99 Mo. 510; Dickerson v. Railroad, 104 Mo. 492; Becke v. Railroad, 102 Mo. 544. (4) The court ruled correctly as to the admission of expert evidence in the case.

OPINION

Macfarlane, J.

This is a suit by plaintiffs, as husband and wife, to recover damages for personal injuries received by the wife, on account of the alleged negligence of defendant's employees in running and managing a train of its cable cars in the city of St. Louis.

The petition makes the following charge of negligence:

"That said injuries were occasioned by the negligence and lack of care on the part of defendant's agents and servants while operating defendant's said cars, in this, that said defendant saw, or by the exercise of reasonable care and foresight might have seen plaintiff's buggy on its right of way and consequently plaintiff's imminent danger, but, notwithstanding the facts aforesaid and regardless of its duty to operate its cars with skill and care, defendant, without having rung any alarm bell or in any wise having notified plaintiffs of its approach on said right of way, negligently and carelessly allowed the grip car to which was attached said train of cars, to run into and break plaintiffs' buggy, thereby causing the injury above complained of.

The manner and cause of the injury is thus stated:

"Plaintiffs were driving in a top buggy in a westerly direction along Easton avenue; a train of defendant's cars, propelled as aforesaid, and in charge of its servants and agents, struck and collided with the rear of the vehicle in which plaintiffs were seated at a point on said Easton avenue, just west of Thomas street, and that the shock of the collision was such that plaintiffs' vehicle was broken and they were precipitated to the ground."

The character of the injuries are charged to have been, shock to nervous system, causing her eyesight to become impaired, and affecting her mental condition, and causing her to have frequent and serious hemorrhages, so that ever since the accident plaintiff has suffered great and continual physical pain and mental anguish.

The answer was a general denial and a plea of contributory negligence. The judgment was for plaintiff and defendant appealed.

The evidence shows that Easton avenue is a public street running in an easterly and westwardly direction through the city of St. Louis. On this street defendant operates two tracks of its cable railway. A space of only eleven feet is left on the north side of the street between the track of the railway and the curbing. Thomas street runs into Easton avenue from the northwest at an angle of about thirty-three degrees. On the twenty-second day of April, 1891, plaintiffs, in a single-top buggy, drove north up Thomas street into the north side of Easton avenue. About fifty feet from the intersection a horse, attached to a buggy, was standing on the street thus occupying and obstructing the greater portion of the eleven feet space between the railroad track and the foot walk. Plaintiffs, in order to pass this buggy, were required to drive upon the railway track. At the time plaintiffs undertook to pass round this standing buggy a train of cars was approaching from the north, on Easton avenue, and on the north track of the road. The customary warnings of this approach were given by the employees in charge of the cars, but these, Mrs. Hicks testified, she did not hear. The cars reduced their speed to about the rate at which plaintiffs were moving and when the latter got upon the track the cars were within a few feet of the buggy and slowly following it, making...