Hovarka v. St. Louis Transit Company
| Decision Date | 22 November 1905 |
| Citation | 90 S.W. 1142,191 Mo. 441 |
| Parties | ADOLPH HOVARKA, by next friend, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Affirmed.
Kiskaddon & Matthews with Boyle & Priest for appellant.
(1) The mere fact that an accident occurred in which plaintiff was injured is no evidence of negligence on the part of the defendant. Fuchs v. St. Louis, 167 Mo. 620. (2) The rule res ipsa loquitur does not apply under the pleadings and evidence in this case. Bartly v. Railroad, 148 Mo 138; Neville v. Railroad, 158 Mo. 293; Smith v Railroad, 113 Mo. 82. (3) When the testimony of plaintiff's witnesses contravenes the physical facts, such testimony has no probative force, and should be disregarded. Nugent v. Kaufman, 131 Mo. 252; Kelsay v. Railroad, 129 Mo. 376. (4) Where the testimony introduced by plaintiff affords no substantial ground for the allegation of defendant's negligence, the court should so instruct. Boyd v. Railroad, 105 Mo. 371; Smith v. Railroad, 113 Mo. 70; Roberts v. Tel. Co., 166 Mo. 384. (5) When the testimony introduced by plaintiff shows that he is guilty of contributory negligence, the jury should be instructed to find for defendant. Hudson v. Railroad, 123 Mo. 445, 101 Mo. 30; Curley v. Railroad, 98 Mo. 13; Van Bach v. Railroad, 171 Mo. 346; Giardina v. Railroad, 185 Mo. 330. (6) The fourth and fifth instructions as asked by defendant ought to have been given, and the court erred in modifying them and of his own motion giving them in their modified form. Bowles v. Hunter, 91 Mo.App. 337; Jordan v. Webber, 72 Mo.App. 328; Zimmermann v. Railroad, 71 Mo. 491; Yarnell v. Railroad, 75 Mo. 583; Abbott v. Railroad, 83 Mo. 278; Murray v. Railroad, 176 Mo. 190. (7) In the fourth and fifth instructions above mentioned the court changed the term "ordinary care" to the terms "proper care," and interlined a direction to the jury to other instructions for a definition of "proper care." No such other instructions were given. These instructions, as given by the court of its own motion, are erroneous for the changes and interlineations, and because as given they are not complete and are misleading. The court having undertaken to give the instructions ought to have completed them by giving the definition. Authorities cited to point 6 and the following instances where words were used in a technical sense, and it has been held they required definition: "Consequential damages" and "direct and immediate damages:" Railroad v. Dowley, 50 Mo.App. 487. "Heat of passion:" State v. Andrew, 76 Mo. 101. "Warranty:" Flint v. Ball, 43 Mo.App. 510. "Premeditation:" State v. Harris, 76 Mo. 363. "Reasonable doubt:" State v. Christian, 66 Mo. 143. "Matters material to the issue." State v. Chyo Chiagk, 92 Mo. 416; State v. Miller, 100 Mo. 622. "Adverse possession:" Googher v. Niece, 75 Mo. 383; Dyer v. Brannock, 2 Mo.App. 432. "Gross negligence:" Mueller v. Ins. Co., 45 Mo. 88; Wiser v. Chesley, 53 Mo. 549; Mason v. Stock Yds. Co., 60 Mo.App. 100. "Due diligence:" Turner v. Railroad, 76 Mo. 263. "Acting in good faith:" Dry Goods Co. v. Schooby, 66 Mo.App. 415. "Material facts:" Digby v. Ins. Co., 3 Mo.App. 603. "Exemplary damages:" Hayes v. Railroad, 15 Mo.App. 584. It has even been held that the words "preponderance of evidence" are, with the average juryman, susceptible of, and very likely to receive, an infinity of construction. Clarke v. Kitchen, 52 Mo. 317; Carson v. Porter, 22 Mo.App. 185; Young v. Ridenbaugh, 67 Mo. 584. How much more then should the court, when giving an instruction of its own motion, define the term "proper care," a term unknown in its ordinary sense to the law of negligence, and especially should he do so when he refers in the instruction to other instructions for the definition. It is submitted that a failure to give the defining instructions in such case is error. (8) Negligence and ordinary care should be defined, or the instructions given should state under the evidence what facts constitute ordinary care and negligence, and submit the truth or falsity of the facts to the jury for their finding. Wiser v. Chesley, 53 Mo. 548; Mueller v. Ins. Co., 45 Mo. 88; Wyatt v. Railroad, 62 Mo. 410; Gorby v. Railroad, 93 Mo. 451;
M. Hartman, A. L. Grace and R. L. Shackleford for respondent.
(1) The evidence is clear that at the time the boy fell upon the track, he did not see the car, and the car was at least seventy-five feet, and perhaps more, away from him, and by the exercise of a vigilant watch, the defendant's motorman could have easily stopped the car, and averted the injury, and therefore the evidence makes out a strong case for the plaintiff, and the defendant's demurrer was properly overruled. (2) While it may be true that the mere fact that the boy was injured is not sufficient in itself to show liability as against the company, yet that fact, together with all the evidence in the case, clearly discloses the fact that the company's servants in charge of the car were negligent. (3) The sixth contention of the defendant is, that when the testimony introduced by plaintiff shows that he is guilty of contributory negligence, the jury should be instructed to find for the defendant. To this contention the plaintiff says that he was not guilty of contributory negligence, and was not guilty of negligence at all, for at the time he undertook to cross the railroad track, he had ample time to cross it, and would not have, and could not have been injured by the car, for the car was not within seventy-five feet of him, and but for the fact that, the track being muddy, he slipped and fell and injured himself so badly that it was impossible for him to recover from his stunned condition in time to leave the track, before the car had come upon him and injured him. Not only so, but the law is that the plaintiff is presumed to be in the exercise of ordinary care as defined in the instructions given the jury by the court, and the testimony in this case clearly shows, not only that the boy was not guilty of any kind of negligence, but did just what any person would have done under the circumstances. In cases where contributory negligence is to be established by those who contend for it, the testimony must show it by a preponderance of the testimony in order that the presumption of law must be removed, and in this case defendant signally failed to introduce a sufficient amount of testimony to overcome the presumption of the law that plaintiff was in the exercise of proper care at the time he was injured, and also fails to establish that the boy was guilty of any negligence whatsoever. Jennings v. Railroad, 112 Mo. 268; Hilz v. Railroad, 101 Mo. 42; McPherson v. Railroad, 97 Mo. 253; Bowen v. Railroad, 95 Mo. 276; Crumpley v. Railroad, 111 Mo. 152; Weller v. Railroad, 164 Mo. 182. The law presumes plaintiff to have been in the exercise of proper care in going over the street at the crossing where he attempted to cross the street car track. Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 87; Crumpley v. Railroad, 111 Mo. 158; Hutchinson v. Railroad, 161 Mo. 246. (4) The defendant is correct when it says that the term proper care is not known in the realm of negligence. Proper care simply means ordinary care, in the usual sense of the word, but as used by the court, was simply used as a reference to call the jury's attention to other instructions where the duty of the motorman in the exercise of his care was properly defined. Riska v. Railroad, 180 Mo. 168; Conrad Grocer Co. v. Railroad, 89 Mo.App. 391; Schmidt v. Railroad, 149 Mo. 282; Fath v. Railroad, 105 Mo. 537; Deitring v. Railroad, 109 Mo.App. 524.
Plaintiff, a ten-year-old boy, was run over by a street car of defendant and received severe injuries, resulting in the amputation of his left leg between the hip and the knee. He recovered a judgment against the defendant for $ 6,500, from which the defendant prosecutes this appeal.
The petition charges negligence in failure to observe the vigilant watch ordinance, also failure to observe the fender ordinance, and failure to sound a gong at the crossing. At the close of the evidence the court by instructions took away from the jury the questions of negligence relating to the fender and the gong, and submitted the case on the sole question of negligence in failing to observe the vigilant watch ordinance.
Plaintiff introduced the ordinance in evidence. That ordinance appears in so many cases in our reports that it is unnecessary to copy it here in full, but of which it is sufficient to say that it requires the motorman to "keep a 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, the car shall be stopped in the shortest time and space possible."
The defendant was operating a single-track street railroad which comes south on Mississippi avenue until it reaches Gravois street, and then continues its course southwest on that street.
According to the plaintiff's testimony the accident occurred in this manner:
The scene of the accident is shown in a diagram, in evidence whereon appears Shenandoah avenue running from northwest to southeast and crossing Gravois street at an acute angle, also Salena street coming from the south and terminating in the plaza formed by the acute intersection of Shenandoah avenue with Gravois street. There are four crossings over Gravois street shown on this diagram; the first at or near Salena street, the second 88 feet and 6 inches west, the third 104 feet and 6 inches further west, and the...
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