Johnson v. Springfield Traction Co.

• Decision Date: 11 December 1913
• Parties: JOHNSON v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

161 S.W. 1193

176 Mo. App. 174

JOHNSON v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

December 11, 1913.

Rehearing Denied January 6, 1914.

1. STREET RAILROADS (§ 117)—PERSONAL INJURIES —QUESTION FOR JURY.

On evidence, in an action for personal injuries from a collision of defendant's street car with a wagon on which plaintiff was riding, held, that a demurrer to the evidence was properly overruled.

2. TRIAL (§ 260)—REFUSAL OF INSTRUCTIONS —MULTIPLICITY.

Courts should not give too many instructions in any case, as they tend to confuse rather than to enlighten the jury, and, having given an instruction fairly and clearly presenting an issue, further instructions differently worded but covering the same point or making nice legal distinctions are properly refused.

3. PLEADING (§ 8)—CONCLUSIONS—CONTRIBUTORY NEGLIGENCE.

The mere general statement of a conclusion that if defendant was negligent the plaintiff was also guilty of negligence contributing thereto is bad pleading which, in the absence of waiver, is insufficient to raise any such issue.

4. STREET RAILROADS (§ 99) — TRAVELERS' USE OF STREET—NEGLIGENCE.

The mere use of a public street, no part of which was set apart for the exclusive use of a street railway, by driving on the part of the street occupied by its car track, is not negligence which will preclude recovery for injuries received by being run into by a street car.

5. NEGLIGENCE (§ 93)—CONTRIBUTORY NEGLIGENCE —IMPUTED NEGLIGENCE.

Where plaintiff, in an action against a street railway for personal injuries from a collision, was not driving or directing the wagon on which she was riding with her husband, and he was not her agent in so doing, his negligence in driving, if any, was not imputable to her, where she did not concur in or expressly sanction it, or knowing the danger fail to protect herself.

6. TRIAL (§ 296)—INSTRUCTIONS—CONTRIBUTORY NEGLIGENCE—CURE OF OMISSION.

In an action against a street railway for personal injuries from a collision, a defense like contributory negligence, which must be pleaded and proved by defendant, may properly be left to a separate instruction, so that a general instruction for plaintiff omitting any reference to such defense is not erroneous.

7. TRIAL (§ 295)—INSTRUCTIONS—CONSTRUCTION AS A WHOLE.

Error, if any, in a general instruction for plaintiff, in an action against a street railway for personal injuries, omitting any reference to contributory negligence, was harmless where it and the instruction for defendant, pointing out all acts of plaintiff alleged to constitute contributory negligence, supplemented each other and when read together made a harmonious whole.

8. STREET RAILROADS (§ 118)—PERSONAL INJURIES —INSTRUCTIONS—NEGLIGENCE.

In an action against a street railway for personal injuries from a collision, an instruction stating generally the duty of defendant, followed with a specific application of the doctrine so stated to the facts in issue, was proper.

9. STREET RAILROADS (§ 81)—PERSONAL INJURIES —DUTY OF VIGILANT WATCH.

The vigilant watch doctrine is in force as part of the common law, without any city ordinance to that effect.

10. TRIAL (§ 191) — INSTRUCTIONS—ASSUMPTION OF FACT.

In an action against a street railway for personal injuries from a collision, an instruction that if a jury found from the evidence that the motorman saw, or by ordinary care could have seen, the plaintiff's wagon moving along its track in dangerous nearness thereto, was not objectionable as assuming that the car was "in dangerous nearness thereto" without the qualification "if you so find."

11. STREET RAILROADS (§ 90)—PERSONAL INJURIES —AVOIDABLE INJURY.

In an action for personal injuries received in a collision with a street car, plaintiff might recover where defendant could have prevented injury either by sounding the gong or stopping the car and failed to do so, and could also recover on defendant's negligence in not stopping the car, even if the gong was being sounded.

12. TRIAL (§ 243)—INSTRUCTIONS—CONFLICTING INSTRUCTIONS.

In an action for personal injuries received in a collision with a street car, an instruction, permitting a recovery if defendant could have prevented the accident by either sounding a gong or stopping the car and failed to do so, was not in conflict with an instruction permitting recovery for negligent failure to stop the car even if the gong was being sounded, since, if it was defendant's duty to do both of such things to avoid injury, the doing of one only would not excuse its failure to do the other when the doing of the other would have avoided injury.

13. STREET RAILROADS (§ 90)—OPERATION— "VIGILANT WATCH" — "FIRST APPEARANCE OF DANGER."

The doctrine of "vigilant watch," as applying to the operation of a street railway, requires that a motorman on the "first appearance of danger" to a vehicle on the track shall stop the car in the shortest time and space possible; and where he has an unobstructed view of the vehicle either on the track or so near as to be in danger, and he sees, or by due care might see, the danger in time to control or stop his car before collision, the time and place where his duty to do so arose is somewhere between the place of vision and the collision.

14. STREET RAILROADS (§ 117)—PERSONAL INJURIES — QUESTION FOR JURY — AVOIDABLE INJURY.

In an action against a street railway for personal injuries from a collision of its car with plaintiff's wagon, it is for the jury to determine when plaintiff's danger first appeared.

15. APPEAL AND ERROR (§ 882)—RIGHT TO COMPLAIN—PARTY ALLEGING ERROR.

A party cannot complain of error in the theory on which the case was submitted, when its own instruction submitted the same theory.

16. NEGLIGENCE (§ 119) — ISSUES — LAST CLEAR CHANCE—PLAINTIFF'S NEGLIGENCE.

The humanitarian or last clear chance doctrine is an exception to and defeats the rule that contributory negligence is a complete defense, and arises not because of, but in spite of, plaintiff's negligence, so that, where the facts found call for the application of the doctrine, the fact that plaintiff's negligence is not pleaded or admitted is unimportant.

17. TRIAL (§ 194)—INSTRUCTIONS—PROVINCE OF JURY.

Whether positive evidence of witnesses who said that they heard the gong of a street car sounded was entitled to greater weight than negative evidence of witnesses, who said that they were in a position to hear it, but did not hear it, is a question to be weighed by the jury, who are the sole judges of the weight to be given the testimony of any witness.

18. TRIAL (§ 252)—INSTRUCTIONS—APPLICATION TO EVIDENCE.

In an action against a street railway for personal injuries from a collision, where there was no proof of plaintiff's expectancy of life at her age, it was not error to refuse an instruction that, in determining the amount of damages, her age and expectancy should be considered.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by Martha A. Johnson against the Springfield Traction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant appeals from a judgment for $6,000 in favor of plaintiff for personal injuries sustained by her by reason of defendant's trolley car colliding with a wagon on which she was riding with her husband, whereby plaintiff was thrown to the pavement. The injury occurred on Jefferson, a north and south street, in Springfield, Mo., on Labor Day, 1912. The plaintiff and her husband, both very old people, were moving from the country to town and were hauling certain household goods, including an "old fashioned" kitchen safe, on a one-horse spring wagon; they sitting on a spring seat with this kitchen safe fastened crosswise on the wagon bed just behind this seat. This safe was some 6 or 7 feet high, and when laid across the wagon bed projected over either side some 18 to 24 inches. The wagon was traveling south, as was the trolley car which struck it, and, while there is some conflict of the evidence on this point, the jury were warranted in finding that shortly before the actual collision one wheel of the wagon was running inside the west rail with the driver trying to turn to the west so as to entirely clear the track. The car overtook the wagon just after the wagon wheel passed over the rail to the west side and while the wagon was yet so near the track that, while the car cleared the wagon, it struck the projecting end or legs of this kitchen safe, forcing it forward against the seat and precipitating both plaintiff and her husband onto the pavement a few feet from the curb on the west side of the wagon. The force of the blow was such that, while plaintiff was on the east end of the seat next to the colliding car, she was thrown over her husband lighting nearest to the west curb. The husband died from the effects of his injuries, and this plaintiff had several bones broken and received severe and permanent injuries. This suit is for her personal injuries and not for the death of her husband. It is shown that Jefferson is a much traveled street at and near the place of the accident, and that at the time and place thereof there were one or two automobiles near the west curb, so that plaintiff's wagon was to some extent hemmed in so as to prevent turning westward to clear the track. Plaintiff testified that she remembered well of their driving along the street in the wagon, but knew nothing of the accident or what caused it until she regained consciousness at the hospital some days later and was told how she got hurt. As the husband was killed, it is mere conjecture that he ever knew of the approach of the car from the rear or what happened to him.

It is undisputed that those in charge of the car had an unobstructed view of the wagon as it proceeded up the track for a block before the wagon was reached; it was a clear day, the track in good condition, the car equipped with modern appliances and...