Johnson v. Springfield Traction Company

• Decision Date: 11 December 1913
• Citation: 161 S.W. 1193,176 Mo.App. 174
• Parties: MARTHA A. JOHNSON, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant
• Court: Missouri Court of Appeals

161 S.W. 1193

176 Mo.App. 174

MARTHA A. JOHNSON, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant

Court of Appeals of Missouri, Springfield

December 11, 1913

Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.

AFFIRMED.

STATEMENT.--The defendant appeals from a judgment for $ 6000 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, Missouri, 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 six or seven feet high and when laid across the wagon bed projected over either side some eighteen to twenty-four 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 was 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 her 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 running up grade. There is also much evidence, though this is not uncontradicted, that the car was running eight to ten miles per hour, the speed not slackened until the actual collision and that no gong or other alarm was sounded to give warning of the car's approach from the rear. The following substance of the evidence of the witness Horn who saw the accident will show how it occurred: I operated an electric car as motorman about two years at Kansas City; am reasonably familiar with the operation of these cars and with the appliances on them; this was a two-truck car; I was in Springfield on September 2, 1912, on Labor Day; I did not know Mr. and Mrs. Johnson at that time; I witnessed the collision; when I first saw the wagon it was going south, one wheel on the left-hand side being about on the west rail of the track; the car was about sixty feet from the wagon when I first noticed it; the car was going eight or ten miles an hour and did not slow up after I saw it until it struck the wagon; It kept on at the same rate of speed; I did not hear any alarm sounded; at the time the car struck the wheel of the wagon had gotten off of the track; I do not think the car struck the wagon but it struck the legs of the safe lying on top of the wagon and threw it against the seat; the safe extended over the sides of the wagon; the effect of the collision was the pushing of the safe forward and striking the seat and throwing the old people out; at the speed this car was going it could have been stopped in about thirty or forty feet.

The grounds of negligence alleged in the petition and on which the case went to the jury are that the persons in charge of the car saw or by the exercise of ordinary care could have seen the wagon and plaintiff on the track or in dangerous nearness thereto in time to have prevented the accident by sounding the gong or stopping the car and negligently failed to do so. The answer is in effect a general denial, except admitting the collision, coupled with a general statement that if defendant "was guilty of any negligence, as alleged in the petition, which defendant denies, and that such alleged negligence caused said collision and injury, which defendant denies, the negligence of the plaintiff and the negligence of her said husband directly contributed thereto."

Judgment affirmed.

Delaney & Delaney for appellant.

(1) An instruction which by its terms and plain meaning covers the whole case and, on the facts therein stated, peremptorily directs a verdict for plaintiff, must cover every phase of the case and must include the defenses interposed. Stewart v. Andes, 110 Mo.App. 243; Scanlan v. Gulick, 199 Mo. 449; Austin v. Transit Co., 115 Mo.App. 146; Johnson v. Railroad, 117 Mo.App. 308; Rudd v. Fire Co., 120 Mo.App. 1; Abbott v. Mining Co., 112 Mo.App. 550; Grier v. Strother, 111 Mo.App. 386; Flaherty v. Transit Co., 207 Mo. 318; Toncrey v. Railroad, 129 Mo.App. 596; Balles v. Railroad, 134 Mo.App. 696; Johnson v. Railroad, 203 Mo. 381; Teddeck v. Car Co., 125 Mo.App. 24; Percell v. Railroad, 126 Mo.App. 43. (2) Where an instruction given for the plaintiff does not correctly declare the law, this error is not cured by an inconsistent but correct declaration of law given for defendant. McKinnon v. Coal Co., 120 Mo.App. 148; Wojtylak v. Coal Co., 188 Mo. 260; State v. Darling, 202 Mo. 150-155. (3) Where an instruction assumes a controverted fact, it is reversible error. Instructions Nos. 1 and 2 assumes that the plaintiff was in "dangerous nearness" to the track, and is therefore fatally erroneous. Klein v. Transit Co., 117 Mo.App. 691; York v. City of Everton, 121 Mo.App. 640; Bond v. Railroad, 122 Mo.App. 207; Manufacturing Co. v. Ham, 112 Mo.App. 718; Stanley v. Railroad, 112 Mo.App. 601; Crow v. Railroad, 212 Mo. 589; Railroad v. Stewart, 201 Mo. 491. (4) The petition contains specific allegations of negligence, to-wit, that defendant was running its car at from 10 to 15 miles an hour and not ringing its gong. These are the allegations of facts--the others are mere conclusions. Hence instructions should have been confined to these specific allegations. At least refused instruction H should have been given. Kirkpatrick v. Railroad, 211 Mo. 68; Smith v. Railroad, 126 Mo.App. 120; Hartman v. St. Louis T. Co., 112 Mo.App. 439; Joseph v. Railroad, 129 Mo.App. 603; Thompson v. Keyes Co., 214 Mo. 487. (5) The humanitarian doctrine cannot be invoked except upon the concession of negligence by plaintiff. Beelenwald v. Railroad, 121 Mo.App. 595-601. (6) It was not the duty of the motorman to stop the car, or even to check it (if not running a negligent speed) because the plaintiff and husband did not immediately move away upon first signal. This was a vital question which should have been submitted to jury under proper instructions. Malloy v. Railroad, 84 Mo. 270; Zimmerman v. Railroad, 71 Mo. 467; Purl v. Railroad, 72 Mo. 168; Yancy v. Railroad, 93 Mo. 433; Boyd v. Railroad, 105 Mo. 371; Smith v. Railroad, 52 Mo.App. 36; Millinery Co. v. Railroad, 89 Mo.App. 668; Grocer Co. v. Railroad, 89 Mo.App. 534; Caldwell v. Railroad, 58 Mo.App. 453; Weaver v. Railroad, 60 Mo.App. 207; Bunyan v. Railroad, 127 Mo. 12; Riley v. Railroad, 68 Mo.App. 661; Rine v. Railroad, 88 Mo. 392; Jackson v. Railroad, 157 Mo. 621; Hyde v. Railroad, 110 Mo. 279.

George Pepperdine and Patterson & Patterson for respondent.

(1) Contributory negligence is a matter of defense and should be pleaded in the answer, in order to be available as a defense to plaintiff's cause of action, and that the plaintiff need not allege or prove that he was without fault at the time of the injury. Petty v. Railroad, 88 Mo. 306; Hudson v. Railroad, 101 Mo. 13; Young v. Iron Co., 103 Mo. 324; Owens v. Railroad, 95 Mo 169; Dougherty v. Railroad, 97 Mo. 661; Bank v. Hatch, 98 Mo. 379; Reilly v. Railroad, 94 Mo. 600; State ex rel. v. Hope, 102 Mo. 426; Burdoin v. Trenton, 116 Mo. 372; Hughes v. Railroad, 127 Mo. 452; Meadows v. Life Ins. Co., 129 Mo. 97; Anderson v. Railroad, 161 Mo. 427. (2) The instructions should be construed as a collective whole. McKinstry v. St. Louis Transit Co., 82 S.W. 106. (3) The husband's negligence, if any, is not imputable to the plaintiff. Moon v. Transit Co., 237 Mo. 435. (4) A party cannot complain of an instruction in harmony with one requested by him. Thorpe v. Railroad, 89 Mo. 650; Hall v. Water Co., 48 Mo.App. 356. (5) Errors not materially affecting the merits are not ground for reversal. Orth v. Dorschlied, 32 Mo. 366; Phillips v. Evans, 64 Mo. 17; Crawford v. Cushman, 82 Mo.App. 554; Berksen v. Railroad, 144 Mo. 211; Boettger v. Iron Co., 124 Mo. 87. (6) The court...