Kaemmerer v. Wells

• Decision Date: 11 June 1923
• Citation: Kaemmerer v. Wells, 252 S.W. 730, 299 Mo. 249 (Mo. 1923)
• Parties: MATHEW KAEMMERER v. ROLLA WELLS, Receiver of United Railways Company, Appellant
• Court: Missouri Supreme Court

252 S.W. 730

299 Mo. 249

MATHEW KAEMMERER v. ROLLA WELLS, Receiver of United Railways Company, Appellant

Supreme Court of Missouri, Second Division

June 11, 1923

Appeal from St. Louis County Circuit Court.-- Hon. John W McElhinney, Judge.

Affirmed.

Charles W. Bates, T. E. Francis, A. E. L. Gardner and Carter, Nortoni & Jones for appellant.

(1)The court should have given appellant's demurrer to the evidence at the close of plaintiff's case, and having refused that, should have done so at the conclusion of all the evidence, because plaintiff's evidence shows him to have been guilty of contributory negligence as a matter of law.Evans v. Illinois Central Railroad Co.,289 Mo 493;State ex rel. Hines v. Bland,237 S.W. 1018;Spaunhorst v. United Railways Co.,209 Mo.App. 319 328;Dey v. United Railways Co.,140 Mo.App. 461, 473;Freie v. Railway Co.,241 S.W. 671;Grear v. Harvey,195 Mo.App. 11;McCreary v. United Railways Co.,221 Mo. 18, 31;Volkers Products Co. v. United Railways Co.,185 Mo.App. 310, 317;Kelsey v. Mo. Pac. Ry. Co.,129 Mo. 362, 372;Vandeventer v. Chicago & Alton,177 S.W. 834;England v. S.W. Mo. Railroad Co.,180 S.W. 34;3 Elliott on Railroads(3 Ed.) sec. 1663;Coal & Coke Co. v. Railways Co.,215 S.W. 914;Kelley v. Railroad Co.,88 Mo. 534;Hinze v. Railroad Co.,71 Mo. 640;Hayden v. Railroad Co.,124 Mo. 566.(a)"If plaintiff or the party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of defendant's negligence, but did not, the case is one of mutual fault, and the law will neither cast all the consequences upon the defendant, nor will it attempt any apportionment thereof."Cooley on Torts (2 Ed.) 812;Moore v. Lindell Railway,176 Mo. 528, 543.(b) If the view was obstructed by the saloon building, as plaintiff says it was, and plaintiff was familiar with the situation as he says he was, then this fact alone, instead of relaxing, enhanced the duty to exercise care for his own safety, and under such circumstances it is not enough to merely look and listen before passing the obstruction, but he must actually stop and look and listen before going upon the track, and more especially so in view of the darkness and the snow, and the fact that he was riding within an enclosed automobile with outlook through mere dingy isinglass curtains.Hornstein v. United Railways Co.,195 Mo. 440, 450;State ex rel. Hines v. Bland,237 S.W. 1020.(2)Respondent's instruction number 3 on the measure of damages is erroneous, in that it assumes injuries to plaintiff without requiring the jury to find that plaintiff received such injuries.It is always reversible error for an instruction on the part of plaintiff, without requiring a finding thereon, to assume an issuable fact in the case.Gamey v. Kansas City,259 Mo. 654, 663.(a) Especially is this true when the instruction in a personal injury case assumes the issuable fact which constitutes the very crux to the right of damages, that is, the injury or injuries to plaintiff.Moon v. St. Louis Transit Co.,247 Mo. 237;Plummer v. City of Milan,70 Mo.App. 598;Evans v. City of Joplin,76 Mo.App. 20;Fullerton v. Fordyce,120 Mo. 1.(b) The instruction is furthermore erroneous, because it authorized a recovery as for permanent injuries, without limiting such to the injury to plaintiff's chest and his left eye, concerning which alone there is evidence as to permanent injury.Lebrecht v. United Railways Co.,227 S.W. 112;Smiley v. Railways Co.,160 Mo. 636;Wilbur v. Railroad,110 Mo.App. 689;Perkins v. United Railways Co.,243 S.W. 224.(3) The verdict of ten thousand dollars on the evidence in this case is excessive, and in any view it should be reduced by remittitur.Dominick v. Mining Co.,255 Mo. 463;Clifton v. Railroad,232 Mo. 708;Hulse v. Railroad,214 S.W. 250;Davenport v. Electric Co.,242 Mo. 111.(a) Furthermore, the circumstances and facts in evidence are insufficient to show with reasonable certainty causal connection between the impaired condition of plaintiff's left eye, which was not discovered until June 5th, five months after the accident, which occurred on January 8, 1920, and the accident, especially in view of the fact that plaintiff's doctor who treated him the night of the injury and for three months thereafter did not discover any impairment of injury to his eye.Gaty v. United Railway Co.,227 S.W. 1041-1046, and authorities, supra.(4) The excessive speed of defendant's car was not the proximate cause of injury.Although there be negligence, such is not actionable negligence unless there is causal connection between the negligent act and the injury.Lackey v. United Railways Co.,288 Mo. 146;Crone v. United Railways Co.,236 S.W. 654;Battles v. United Railways Co.,178 Mo.App. 596, 614;State ex rel. Newspaper Assn. v. Ellison,176 S.W. 11;King v. Wabash Railroad Co.,211 Mo. 1, 14.(a) There being neither statutory nor ordinance regulation touching the rate of speed at which the street car might be run in the country district, no rate of speed was negligence per se.Kreis v. Mo. Pac.,148 Mo. 321, 328.(b) The street car being seventy-five feet away, approaching at twenty miles per hour, and plaintiff's automobile being upon the first rail of the track, traveling at five miles per hour, would have made it across out of danger, except for the skidding and sudden turn of the automobile which impeded its progress until the street car caught the left rear wheel of the machine.King v. Wabash Ry., 211 Mo. 14.

John E. Mooney and George Barnett for respondent.

(1)The court did not commit error in refusing to give appellant's demurrer to the evidence at the close of plaintiff's case, and at the close of all the evidence.The evidence in the case does not convict plaintiff of contributory negligence as a matter of law.It was plainly a question for the jury as to whether plaintiff exercised ordinary care for his own safety in undertaking to cross the track.Clooney v. Wells,252 S.W. 72;State v Reynolds,226 S.W. 569;Monroe v. Chicago & Alton,280 Mo. 490;Mason v. United Rys. Co.,246 S.W. 318;Caldwell v. Payne,246 S.W. 312;Campbell v. St. Louis & Suburban Ry. Co.,175 Mo. 161;Stepp v. Railway,211 S.W. 730;Petty v. Ry. Co.,88 Mo. 306;Engleman v. Met. Street Railway Co.,133 Mo.App. 514;Sandry v. Hines,226 S.W. 648;Ruenzi v. Payne,208 Mo.App. 113;Bruckman v. United Railways Co.,242 S.W. 686;Evy v. Davis,244 S.W. 956;McDonald v. United Railways Co.,245 S.W. 559;Hamm v. Railway Co.,245 S.W. 1109;Hooderpile v. United Railways Co.,236 S.W. 913;Draper v. Dunham,239 S.W. 883;Eyash v. United Railways Co.,229 S.W. 223;Moore v. Railroad,157 Mo.App. 53, 62.(a) In passing upon defendant's demurrer to the evidence, the evidence should be viewed in the light most favorable to the plaintiff, and all reasonable inferences that could be indulged, arising from the evidence offered either by plaintiff or defendant, should be accepted.It is not proper to select a single excerpt from the testimony and build a conclusion entirely upon it.If there were discrepancies or contradictions in the testimony of the witnesses it was for the jury to pass upon the same.Sandry v. Hines,226 S.W. 648;Bruckman v. United Rys. Co.,242 S.W. 686;Fritz v. Railway Co.,243 Mo. 77;Stauffer v. Railway Co.,243 Mo. 316;Peters v. Lusk,200 Mo.App. 379;Schulz v. Railway Co.,223 S.W. 757;Simpson v. Wells,237 S.W. 523;Burton v. Holman,231 S.W. 632;Lamb v. Mo. Pac. Ry. Co.,147 Mo. 187.(b) It is not, under all circumstances, necessary for a driver approaching street railroad tracks to stop.Whether, under the facts and circumstances of the case, it was necessary for the plaintiff, in the exercise of ordinary care, to actually stop was a question for the jury.Monroe v. Chicago and Alton,280 Mo. 490;Barrett v. Delano,187 Mo.App. 501, 508;Sandry v. Hines,226 S.W. 648.(2)Respondent's instruction No. 3, on the measure of damages, was not erroneous.(a) It did not assume the existence of plaintiff's injuries.The instruction must be read in connection with instruction No. 1, and instruction No. 1 required a finding of the injuries before there could be any finding for plaintiff.Callicotte v. Rock Island Ry. Co.,274 Mo. 694;Powell v. Railroad,255 Mo. 453.(b) The instruction was not erroneous for permitting the jury to consider whether plaintiff's injuries were of a permanent or temporary nature.There was an abundance of testimony as to the permanency of plaintiff's injuries.In fact, the undisputed testimony was to the effect that the injuries were permanent.West v. Railroad,187 Mo. 364;Hurst v. Burlington Ry. Co.,280 Mo. 570;Scott v. Metropolitan Street Ry. Co.,138 Mo.App. 196.(c) Even though the instruction was somewhat too general in failing to restrict the reference of permanent injuries to the particular elements of damage resulting permanently, the appellant is in no position to complain, for the reason that it failed to ask an instruction of its own limiting the instruction in the manner desired by appellant.Jones v. Frisco Ry. Co.,287 Mo. 81;Martin v. S. T. & T. Co.,217 S.W. 836;Powell v. Railroad,255 Mo. 454;Minter v. Bradstreet Co.,174 Mo. 491;Browning v. Railway,124 Mo. 71.(3) The verdict for $ 10,000 was not excessive.Jackman v. Railway Co.,231 S.W. 978;Adams v. Railroad Co.,287 Mo. 535;Vorley v. Columbia Taxicab Co.,240 S.W. 228;Dutcher v. Wabash Ry. Co.,241 Mo. 137.The causal connection between the impaired condition of plaintiff's left eye and the injuries was sufficiently established.In fact, the testimony on this point was positive and direct.In answer to defendant's direct question Dr. Howard stated that the condition of plaintiff's left eye resulted...