Keeney v. Wells
| Decision Date | 08 January 1924 |
| Citation | 257 S.W. 1075,214 Mo.App. 79 |
| Parties | R. M. KEENEY, Respondent, v. ROLLA WELLS, Receiver of UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Charles W. Rutledge, Judge.
AFFIRMED.
Judgment affirmed.
Charles W. Bates, T. E. Francis and Alva W. Hurt for appellant.
(1) The court erred in refusing to give the jury the instruction in the nature of a demurrer to the evidence, requested by defendant, at the close of plaintiff's case and the whole case, for the reason that plaintiff was guilty of contributory negligence as a matter of law, barring a recovery by him upon the theories of primary negligence which was submitted as the sole predicate of liability, namely violation of the Vigilant Watch and Fifteen Mile Speed Ordinances of the city of St. Louis. Plaintiff was guilty of contributory negligence as a matter of law, in that, after having seen the street car approaching at the rate of eighteen or twenty miles an hour, when he was standing eighteen feet from the north rail of the eastbound track, he drove across the intervening space, without again looking and drove upon the track immediately in front of it. Bierman v. United Rys. Co., 244 S.W. 94; Bendick v. Wells, 253 S.W. 394; McConnell & Pilcher v. United Rys. Co., 238 S.W. 554; McCreery v. United Rys. Co., 221 Mo. 18; Kelsay v. Railway, 129 Mo. 362; Mockowik v. Railroad, 196 Mo. 550; Gubernick v. United Rys. Co., 217 S.W. 33; Tannehill v. Railroad, 213 S.W. 818; Peters v. Lusk, 200 Mo.App. 372; Voelker Products Co. v. United Rys. Co., 185 Mo.App. 310; Roenfeldt v. Suburban Ry., 180 Mo. 554; State ex rel. v. Reynolds, 233 S.W. 219; Huggart v. Railroad, 134 Mo. 673. (2) The court erred in giving the jury plaintiff's instruction No. 1, authorizing a recovery by plaintiff upon the theory that defendant violated the Vigilant Watch Ordinance of the City of St. Louis, for the reason that, as set out in Point 1, plaintiff was guilty of contributory negligence as a matter of law, barring a recovery upon this theory. See authorities cited under Point 1. (3) The court erred in giving the jury plaintiff's instruction No. 2, authorizing a recovery by plaintiff upon the theory that the car was operated at a speed in excess of fifteen miles per hour, in violation of the Speed Ordinance of the City of St. Louis, for the reason that, as set out in Point 1, plaintiff was guilty of contributory negligence as a matter of law, barring a recovery upon this theory. See authorities cited under Point 1. Plaintiff did not rely upon the presumption that the street car would not be run in excess of the maximum rate of speed permitted by ordinance. Products Co. v. United Rys. Co., 185 Mo.App. 310; Mockowik v. Railroad, 196 Mo. 550; Paul v. United Rys. Co., 152 Mo.App. 577; Green v. Railroad, 192 Mo. 131; Vandeventer v. Railroad, 177 S.W. 834. (4) The court erred in refusing to give the jury instruction "B" requested by defendant, withdrawing the assignment of negligence charging violation of the viligant watch, for the reason that plaintiff's contributory negligence, as stated in Point 1, barred a recovery under this theory. See authorities cited under Point 1. (5) The court erred in refusing to give the jury instruction "C," requested by defendant, withdrawing the assignment of negligence charging that the street car, at the time and place in question, was operated at a speed in excess of fifteen miles per hour, for the reasons: (a) Plaintiff's contributory negligence, as stated in Point 1, barred a recovery under this theory. See authorities cited under Point 1. (b) Plaintiff did not rely upon the operation of the street car at a speed of fifteen miles or less. Vandeventer v. Railroad, 177 S.W. 834; Green v. Railroad, 192 Mo. 131; Paul v. United Rys. Co., 152 Mo.App. 577; Mockowik v. Railroad, 196 Mo. 550.
Wood & Teasdale and John C. Tobin for respondent.
(1) (a) In considering whether or not plaintiff made a case for the jury and whether or not he was guilty of contributory negligence as a matter of law, plaintiff must be given the benefit of every reasonable inference and presumption deducible from the evidence adduced in his behalf, and that evidence is to be viewed in the light most favorable to plaintiff. Irwin v. United Rys. Co., 196 Mo.App. 666, 191 S.W. 1130; Scobey v. Allen Cooperage Co., 210 Mo.App. 301, 236 S.W. 686; Hollweg v. Bell Tel. Co., 195 Mo. 149, 93 S.W. 262; Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934; Anderson v. White, 235 S.W. 834. (b) Where reasonable minds might differ as to whether or not plaintiff was negligent so as to bar his right of recovery, it is a matter to be submitted to the jury. Gratiot v. Railroad, 116 Mo. 450; Jackson v. Railroad, 171 Mo.App. 430; Maloney v. United Rys. Co., 183 Mo.App. 292; Weller v. Railroad, 120 Mo. 635; Campbell v. Railroad, 175 Mo. 161; Maness v. Railroad, 149 Mo.App. 259. (c) Where the injured person's attention is distracted from the car by other legitimate and natural subjects of attention, the question of his contributory negligence is for the jury. Woodward v. Railroad, 152 Mo.App. 468; Maloney v. United Rys. Co., 183 Mo.App. 292; Jackson v. Railroad, 171 Mo.App. 430; Jackson v. Railroad, 189 S.W. 381; Johnson v. Railroad, 77 Mo. 546; Yoakum v. Railroad, 199 S.W. 263; Underwood v. Railroad, 177 S.W. 724. (2) (a) The plaintiff was not negligent as a matter of law. Alexander v. Springfield Traction Co., 249 S.W. 971; Woodis v. United Railways, 199 Mo.App. 348, 203 S.W. 489; Irwin v. United Railways Co., 196 Mo.App. 666, 191 S.W. 1130; Murray v. Transit Co., 108 Mo.App. 501, 83 S.W. 995; Davis v. United Railways Co., 218 S.W. 357; Bruckman v. United Railways Co., 242 S.W. 686; Friedman v. United Railways Co., 254 S.W. 556; Shaffer v. Railroad, 254 S.W. 257; Clooney v. Wells, 252 S.W. 72; Kaemmerer v. Wells, 252 S.W. ; Springgate v. United Railways, 249 S.W. 122; Mason v. United Railways Co., 246 S.W. 318; Dickens v. Wells, 245 S.W. 563; McDonald v. United Railways, 245 S.W. 559; Hoodenpyle v. United Railways Co., 236 S.W. 913; Hawson v. Springfield Traction Co., 226 S.W. 1; Foy v. United Railways Co., 226 S.W. 325; Criss v. United Railways, 183 Mo.App. 392, 166 S.W. 834; Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14; Heintz v. St. L. Transit Co., 115 Mo.App. 667, 92 S.W. 353; Moore v. St. L. Transit Co., 95 Mo.App. 728, 75 S.W. 699; Baker v. Railroad, 122 Mo. 533, 26 S.W. 20. (b) "Decisions involving collisions at crossings in the country cited by appellant have no application, for there the traveler approaching a crossing has reason to anticipate that a train is likely to approach at any speed and must therefore govern himself accordingly." "One crossing a street over street car tracks knows . . . that street cars are so constructed and equipped with appliances that they can be quickly stopped, and the rule of holding one guilty for crossing over a steam railroad crossing when he sees the train coming is not applicable to street cars, because he knows that one is so constructed that it can be quickly stopped and the other cannot be so controlled." O'Neill v. Street Railway, 239 S.W. 877; Alexander v. Springfield Traction Co., 249 S.W. 971; State ex rel. v. Reynolds, 214 S.W. 121. (c) The making of a mere error in judgment or the miscalculating of an element of danger or safety does not render one guilty of contributory negligence as a matter of law. Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14; Irwin v. U. R. Co., 196 Mo.App. 666, 191 S.W. 1130; Friedman v. U. R. Co., 254 S.W. 556. (3) When a party has asked the judgment of the jury upon a given issue by instructions asked by him, he will not be afterward permitted to challenge the verdict on the ground that that issue should not have been submitted to them. Murphy v. Mack, 239 S.W. 595; Berkson v. K. C., etc., Ry., 144 Mo. 211, 45 S.W. 1119; Hudson v. Hall, 239 S.W. 152; Schinogle v. Baughman, 228 S.W. 897.
This is an action for personal injuries alleged to have been sustained by plaintiff when an automobile driven by him was struck by a street car operated by the defendant in the city of St. Louis, charged to have been caused by defendant's negligence. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $ 1200, and the defendant has appealed to this court.
The collision between defendant's street car and plaintiff's automobile occurred on April 19, 1921, on Easton avenue about a half block east of Belleglade avenue public streets in said city. On Easton avenue the defendant maintains two street car tracks, the north track being for the operation of westbound cars and the south track for the operation of eastbound cars. The evidence shows that plaintiff drove his automobile, a Ford, south on Belleglade avenue to Easton avenue, intending to cross defendant's tracks and turn to the east in order to drive east on the south side of Easton avenue. According to plaintiff's testimony, when he reached Easton avenue he brought his automobile to a stop and looked for traffic on that street, saw an eastbound car of defendant approaching from the west on defendant's south track on Easton avenue, the car being then, in his judgment, two hundred or two hundred and fifty feet away, and, thinking that he had ample time to cross in safety, proceeded toward the tracks, his automobile being in low speed. When his automobile was upon the eastbound track he heard the gong of the street car and then noticed that the car was not more than ten feet away from him. He thereupon "pulled down the gas," and tried to get across as quickly as possible, but the...
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