Holwerson v. St. Louis & S. Ry. Co.

• Decision Date: 12 June 1900
• Citation: 157 Mo. 216,57 S.W. 770
• Parties: HOLWERSON v. ST. LOUIS & S. RY. CO.
• Court: Missouri Supreme Court

57 S.W. 770

157 Mo. 216

HOLWERSON v. ST. LOUIS & S. RY. CO.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

STREET RAILROADS — INJURY TO PEDESTRIAN — CONTRIBUTORY NEGLIGENCE — VIOLATION OF ORDINANCES — CIVIL LIABILITY — NEW TRIAL.

1. A decedent's contributory negligence will bar a recovery of damages for causing his death, in the absence of allegations and proof of wantonness or willfulness in causing the injury, though defendant may have been negligent.

2. Where a verdict is in accordance with the law, the granting of a new trial is error, though the court committed error in refusing instructions.

3. The violation of a city ordinance, requiring a motorman to keep a vigilant watch for persons on or moving towards the track, and on the first appearance of danger to stop the car in the shortest time possible, and prescribing a penalty for failure to comply therewith, will not authorize a recovery against the company for causing the death of a person on the track, without proof that such company had agreed to or contracted to be bound by such ordinance, since the city cannot by ordinance create a right of action between third persons, nor enlarge the common-law liability of citizens between themselves.

4. Where a city ordinance regulating the operation of street cars is not enacted for the special benefit of any person or class of persons, but simply pertains to the conduct of the companies to the community as a whole, no other liability follows a violation than the penalty imposed by the ordinance itself, and hence its violation confers no right of action by third persons.

Valliant, J., dissenting.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Action by Helena Holwerson against the St. Louis & Suburban Railway Company. There was a verdict for defendant, and from an order granting a new trial defendant appeals. Reversed.

Appeal by defendant from an order granting the plaintiff a new trial, after a verdict for the defendant; the reason assigned for granting the new trial being error of law in giving instructions for the defendant. The petition alleges that Andrew Holwerson, the plaintiff's husband, was run over and killed on August 6, 1892, by one of defendant's electric cars, at the corner of Lucas avenue and Fourteenth street, in St. Louis. The petition first charges common-law negligence; and, second, the violation of a general ordinance of that city which requires motormen and conductors of street cars to keep a vigilant watch for all persons on foot, either upon the tracks or moving towards them, and upon the first appearance of danger to such person to stop the car within the shortest time and space possible, which ordinance provision the petition charges that the defendant undertook and agreed to obey in consideration of the granting of its franchise by the city. The answer is a general denial, and a plea of contributory negligence on the part of the deceased. The trial resulted in a verdict for the defendant, and the circuit court granted the plaintiff a new trial, assigned as a reason therefor "that the court erred in giving instructions Nos. 2, 3, 4, 5, and 6 at the request of the defendant, and overruled as to other grounds." Those instructions are as follows: "(2) The court instructs the jury that before the plaintiff can recover against the defendant in this action it is incumbent upon her to prove to the satisfaction of the jury that the employés of defendant in charge of the car in question failed and neglected to exercise ordinary care and diligence in stopping its car in time to have avoided the injury to the deceased, Andrew Holwerson; and, unless the plaintiff has shown by the evidence such want of ordinary care on the part of the defendant company's employés in charge of said car, then the jury will find their verdict for the defendant. (3) The court instructs the jury that before the plaintiff can recover from the defendant in this action it is incumbent upon her to establish to the satisfaction of the jury that the employés of the defendant company in charge of its car, after they saw, or by the exercise of ordinary care might have seen, the danger to the deceased, Andrew Holwerson, were guilty of carelessness or negligence in failing and neglecting to stop said car in time to have averted the injury to said deceased, Andrew Holwerson. (4) The court instructs the jury that the employés of the defendant company owed to the deceased, Andrew Holwerson, only that degree of care which an ordinarily careful and prudent person engaged in the same business would have exercised under like and similar circumstances; and, if the jury believes from the evidence that the employés of the defendant company exercised such care, then the jury will find their verdict in favor of the defendant. (5) The court instructs the jury that if they believe from the evidence that the employés of defendant in charge of the car in question used ordinary care in the management of said car at and near the place where the deceased, Andrew Holwerson, was injured, and that as soon as they saw the deceased, Andrew Holwerson, in a position of danger, or by the exercise of ordinary care might have seen that he was in danger, they used such care and caution in stopping said car to avoid injury to said deceased, Andrew Holwerson, as a person of ordinary care and prudence would have exercised under like and similar circumstances, then the verdict of the jury must be for the defendant. (6) The court instructs the jury that it was the duty of the deceased, Andrew Holwerson, before going on or across the tracks of the defendant company, to look and listen for approaching cars of said defendant company; and if you find from the evidence that the deceased, Andrew Holwerson, failed so to do, and that by looking and listening he could have seen or heard the approaching car of the defendant company in time to have averted the injury to himself, then you must find your verdict for the defendant, unless you further find from the evidence that the employés of the defendant engaged in the operation of its car, after they saw, or by the exercise of ordinary care could have seen, that deceased was in a position of peril, failed to use such care and caution in stopping said car to avoid injury to said deceased, Andrew Holwerson, as a person of ordinary care and prudence would have exercised under like and similar circumstances." The instructions given for the plaintiff followed the lines of the petition, and authorized a verdict for the plaintiff if the defendant was guilty of common-law negligence (it is not necessary to analyze that instruction here), and also if the defendant was found guilty of a violation of the city ordinance pleaded, laying special stress upon that feature of the ordinance that requires a motorman to keep a vigilant watch for persons on or moving towards the track, and on the first appearance of danger to stop the car in the shortest space and time possible.

McKeighan, Barclay & Watts, for appellant. A. R. Taylor, for respondent.

MARSHALL, J. (after stating the facts).

The plaintiff says: "The evidence for the plaintiff presented a case of prior negligence of the deceased, Andrew Holwerson, in going upon the track, and subsequent negligence of the motorman in suffering the car to drag deceased and run over and kill him, when he could readily have stopped the car and averted the killing after the deceased was struck and being dragged." On the other hand, the defendant contends that the case is one of "not merely the previous negligence of the deceased, in coming upon the track without looking or listening, but also his continuing negligence after he had gone upon the track, in not getting off of it before the car struck him." In other words, both sides assume that in the first instance the defendant was guilty of negligence, and the plaintiff was guilty of contributory negligence. The difference between them is as to their respective acts and duties after this condition existed. The plaintiff contends that the defendant's agents saw, or by the exercise of a proper degree of care such as the circumstances demanded should have been used they could have seen, the plaintiff's situation and danger, and could have readily stopped the car and averted the killing, and hence it is liable notwithstanding the prior contributory negligence of the plaintiff. The defendant, on the other hand, contends that, even if all this be true, still the plaintiff cannot recover, because, notwithstanding such subsequent negligence on its part, the plaintiff continued to be negligent, in this: that by the exercise of ordinary care he could have prevented the injury by getting off the track before the car struck him, notwithstanding any negligence on the part of the defendant in not stopping the car in time to prevent the accident after the plaintiff's position of danger was seen by it, or notwithstanding the negligence of the defendant in not exercising proper care to discover such danger. In other words, both sides recognize the rules of law as to negligence of the defendant and contributory negligence of the plaintiff, and that there is no such thing as comparative negligence; but the plaintiff invokes the humanitarian doctrine that does not excuse the defendant from liability if, after discovering the danger of the plaintiff, it fails to exercise proper care to prevent injuring him, or if the defendant is further negligent in not discovering the danger of the plaintiff in time to prevent the injury, when by proper care it might have done so and prevented it; and the defendant, conceding all this, still insists that the corollary of the proposition is that, notwithstanding such subsequent negligence of the defendant, the plaintiff cannot recover if he also was guilty of subsequent contemporaneous and continuing negligence, without which he would not have been injured notwithstanding all the negligence of the...