Higgins v. St. Louis & Suburban Railway Company
| Decision Date | 19 June 1906 |
| Citation | 95 S.W. 863,197 Mo. 300 |
| Parties | MARY S. HIGGINS v. ST. LOUIS & SUBURBAN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.
Reversed.
Jefferson Chandler and T. M. Pierce for appellant.
(1) The court erred in refusing to instruct the jury at the conclusion of plaintiff's case in chief that under the pleadings and the evidence their verdict should be for defendant, and that plaintiff was not entitled to recover. The jury should have been instructed that plaintiff was not entitled to recover because the proof showed that the injury to deceased, from which he died, was brought about and occasioned by his own negligence; there was no evidence in the record that defendant was guilty of any negligence on account of which deceased was injured. Lee v. Jones, 180 Mo. 299; Nellis St. Ry., Sur. Law 391; Feary v Railroad, 162 Mo. 75; Wynn v. Railroad, 133 N.Y. 575; Anderson v. Railroad, 30 Misc. (N. Y.) 104; Donelly v. Railroad, 109 N.Y. 16; McFarland v. Railroad, 29 Misc. (N. Y.) 128; Kelley v Railroad, 75 Mo. 138; Carl v. Railroad, 55 Mo. 476; Maher v. Railroad, 64 Mo. 267; Powell v. Railroad, 76 Mo. 80; Payne v. Railroad, 129 Mo. 405; Prewitt v. Railroad, 134 Mo. 615; Railroad v. Beale, 73 Pa. St. 504; Donohue v. Railroad, 91 Mo. 357; Railroad v. Swanson, 57 Ill.App. 309; Bryant v. Railroad, 22 S.W. 797. (2) No negligence was shown on the part of defendant contributing to the injury of deceased, and the proof showed that the negligence of deceased was the direct cause of his death. Frank v. Railroad, 99 Mo.App. 331; Schmidt v. Railroad, 163 Mo. 657; Stepp v. Railroad, 85 Mo. 229; Powell v. Railroad, 76 Mo. 80; Bank v. Bank, 10 Wall. 639; Harlan v. Railroad, 64 Mo. 484; Lenix v. Railroad, 76 Mo. 86; Taylor v. Railroad, 86 Mo. 457; Yancey v. Railroad, 93 Mo. 433; Hayden v. Railroad, 124 Mo. 566; Hook v. Railroad, 162 Mo. 585; Bryant v. Railroad, 22 S.W. 799; Railroad v. Logan, 13 Lea 32; 27 Am. and Eng. Ency. Law (2 Ed.), 64; Anderson v. Railroad, 30 Misc. (N. Y.) 104. (3) It was the duty of deceased to have used all of his faculties before driving upon the track of the defendant, and not expose himself to danger, and this he did not do. Stepp v. Railroad, 85 Mo. 229; Powell v. Railroad, 76 Mo. 80; Harlan v. Railroad, 64 Mo. 480; Railroad v. Beale, 73 Pa. St. 504; Donohue v. Railroad, 91 Mo. 357; Lenix v. Railroad, 76 Mo. 86; Yancey v. Railroad, 93 Mo. 433; Cagney v. Railroad, 71 Mo. 484; Nelson v. Railroad, 68 Mo. 593; Hayden v. Railroad, 124 Mo. 566; Hook v. Railroad, 162 Mo. 585; Anderson v. Railroad, 30 Misc. (N. Y.) 104.
W. B. & Ford W. Thompson for respondent.
(1) Whether or not a given rate of speed is unreasonable, and, therefore, negligent, is to be determined with reference to all the circumstances and conditions existing at the time. Van Natta v. Railroad, 133 Mo. 19; Holden v. Railroad, 177 Mo. 472; Sandifer v. Lynn, 52 Mo.App. 558; Wasson v. McCook, 80 Mo.App. 489; Urquhart v. Boutell, 15 Mo.App. 592; Montgomery v. Railroad, 181 Mo. 477; Campbell v. Railroad, 175 Mo. 161. The failure to show that appellant did not ring a bell would not constitute a variance between the allegata and the probata, since the ringing of a bell is a mere evidentiary fact of the circumstances of the case, and of the presence or absence of a reasonble warning of the car's approach, and was not the act of negligence, upon which the petition was based, or upon which the issues were joined in the court's charge to the jury. Kellny v. Railroad, 101 Mo. 67; Donohue v. Railroad, 91 Mo. 366; Oglesby v. Railroad, 150 Mo. 137; Price v. Railroad, 72 Mo. 414; Werner v. Railroad, 81 Mo. 368; Leslie v. Railroad, 88 Mo. 50; Ridenhour v. Railroad, 102 Mo. 270; Robertson v. Railroad, 152 Mo. 382; Anderson v. R. R., 161 Mo. 411. (2) 1. Where plaintiff has introduced evidence tending to show that defendant has been guilty of negligence which was the direct cause of the injury, the burden of proving that plaintiff was himself guilty of contributory negligence is upon defendant, and contributory negligence cannot be inferred from the mere fact that defendant took certain precautions, but must be established by evidence tending to show that the plaintiff was also guilty of some negligence which directly contributed to cause his injuries. Hall v. St. J. Water Co., 48 Mo.App. 356; Crumpley v. Railroad, 111 Mo. 152; Churchman v. Kansas City, 49 Mo.App. 366; Buesching v. Gas Light Co., 73 Mo. 219; Flynn v. Railroad, 78 Mo. 195; Weller v. Railroad, 164 Mo. 180; Baker v. Railroad, 147 Mo. 140; O'Connor v. Railroad, 94 Mo. 150; Petty v. Railroad, 88 Mo. 318; Richey v. Railroad, 7 Mo.App. 151; Montgomery v. Railroad, 181 Mo. 508; Riska v. Railroad, 180 Mo. 168; Campbell v. Railroad, 175 Mo. 161. 2. Under all of the decisions of this State we believe that at least three presumptions may be indulged, relative to decedent's actions, in the absence of proof to the contrary: (a) That deceased exercised due care for his own safety before attempting to, and while crossing appellant's track, and that it will be conclusively presumed, in the absence of evidence to the contrary, that he did look and listen before driving upon appellant's track. (b) That he relied upon and was justified in relying upon the fact that appellant would comply with its duty, and that its west-bound car would give him due warning of its approach as it neared and was about to cross the public highway at Selby Place. (c) That having acted upon the investigation made by looking and listening, and having driven upon defendant's track, the conditions which existed at the time must have justified his action, because otherwise he was not in the exercise of due care, viz: the car was either not in sight or was sufficiently far distant to reasonably justify his attempting to cross ahead of it, and he either received no warning, or if in fact he did receive a warning, received it at a time and under circumstances which reasonably justified him to attempt to cross ahead of it. Riska v. Railroad, 180 Mo. 168; Richey v. Railroad, 7 Mo.App. 151. (3) The only evidence which appellant introduced was the affidavit in lieu of the testimony of its motorman. This affidavit, instead of disproving appellant's negligence, we think tended to strengthen the case already made against it, and, furthermore, tended to show that deceased was not guilty of contributory negligence. It is very loosely and indefinitely drawn and states conclusions rather than facts, and was admitted against the objection and exception of the respondent, and from it the jury might reasonably find that the motorman did not ring his bell as he approached Selby Place until he was within about twenty-five or thirty feet from the corner of Selby Place. The evidence of the motorman, as to what he saw and what took place when he was within twenty-five or thirty feet of the place of contact with the wagon, when taken in connection with plaintiff's testimony that the lights were out for 244 feet, certainly entitled respondent to go to the jury. (4) The court very properly refused to instruct the jury, as a matter of law, under the circumstances in this case, that if decedent failed to look and listen before driving upon the track, he was ipso facto guilty of contributory negligence, in view of the fact that it was very questionable whether or not a person would have seen this car approaching, or would have heard it by listening before crossing the track, at such a time and place as the evidence shows decedent to have done. Kennayde v. Railroad, 45 Mo. 255; 2 Pattison, Missouri Digest, par. 206, p. 1749; Tabler v. Railroad, 93 Mo. 79; West v. West, 144 Mo. 119; State v. Easton, 138 Mo. 103; Ern v. Rubinstein, 72 Mo.App. 337; McAtee v. Valandingham, 75 Mo.App. 45; Connolly v. Printing Co., 166 Mo. 447; Dixon v. Atkinson, 86 Mo.App. 24; Klockenbrink v. Railroad, 81 Mo.App. 351; Holden v. Railroad, 177 Mo. 456; Campbell v. Railroad, 175 Mo. 161.
Action by wife for the alleged wrongful killing of her husband. Plaintiff is the widow of John Higgins, who was seriously injured at about 6:20 p. m. on the 4th day of November, 1901, by a car, operated by defendant, colliding with a wagon driven by deceased. From the injuries thus received, Higgins died some three days later. In the lower court plaintiff had judgment for $ 5,000 and defendant appealed; hence, the controversy here.
Defendant is a street railway corporation and at the time was operating a double-track railway on Wash street in the city of St. Louis. West-bound cars ran upon the north track, and east-bound cars upon the south track. From Fourteenth street for some distance west these two tracks ran east and west. The tracks came into Wash street from the south on Fourteenth street, at the intersection of which with Wash street, the turn west was made.
The amended petition, upon which the case was tried, for grounds of negligence charges: first, an unreasonable rate of speed; second, a failure to ring the bell or sound the gong or to give warning of the approaching car; and third, a failure to display a light to warn travelers of an approaching car. The answer is first, a general denial, second, a plea of contributory negligence, and third, section 1473 of ordinance 19991, which is as follows:
"Any person who shall in this city ride or drive any animals in any highway, thoroughfare or public place, quicker than or beyond a moderate gait, or shall ride or drive any such animals so as to cause such animal or vehicle attached thereto to come into...
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