Krehmeyer v. St. Louis Transit Company
| Decision Date | 22 May 1909 |
| Citation | 120 S.W. 78,220 Mo. 639 |
| Parties | ERNEST KREHMEYER v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Reversed in part and reversed and remanded in part.
Boyle & Priest, T. E. Francis and Morton Jourdan for appellants.
(1) The court erred in giving instructions 1, 2 and 3, which directed a verdict for plaintiff if the jury believed the car in question was operated at a negligent rate of speed, when plaintiff asked and was given an instruction 4, permitting the jury to return a verdict for him under the "Last Chance" Doctrine, which of necessity admitted that his own negligence contributed to create his position of peril and, therefore, barred a recovery by him on the ground of defendant's primary negligence in running the car at an excessive rate of speed. Ross v. Railroad, 113 Mo.App. 605; Cole v. Railroad, 121 Mo.App. 605; Grout v. Railroad, 125 Mo.App. 552; Woods v Railroad, 188 Mo. 258; Roenfeldt v. Railroad, 180 Mo. 554. (2) The court erred in giving instructions 1, 2 and 3, which directed a verdict for plaintiff if the jury believed the car was operated at a negligent rate of speed because: (a) Plaintiff's own testimony convicted him of contributory negligence as a matter of law. He drove upon the track immediately in front of the car which he saw was bearing down upon him, when by stopping his horses he could have let it pass and thereby have averted the collision. He was not, therefore, entitled to recover on the theory that defendant's car was operated at a negligent rate of speed. Ries v. Railroad, 179 Mo. 1; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Walker v. Railroad, 193 Mo. 455; Sanguinette v. Railroad, 196 Mo. 466. (b) If plaintiff was entitled to recover at all, it was only on the theory that, after he had placed himself in a position of danger, defendant's motorman could have stopped the car by the exercise of ordinary care, with safety to the passengers, in time to have averted the collision, and failed to do so. This theory was submitted to the jury in instruction 4. The jury may have refused to find for plaintiff under this instruction and found for him on the theory that the car was operated at a negligent rate of speed (under instructions 1, 2 and 3), a recovery on which theory was barred by his contributory negligence. Ross v. Railroad, 113 Mo.App. 605; Cole v. Railroad, 121 Mo.App. 605; Grout v. Railroad, 125 Mo.App. 552; Woods v. Railroad, 188 Mo. 258; Roenfeldt v. Railroad, 180 Mo. 554. (3) Plaintiff's instructions 1 and 3 are erroneous in that they permitted the jury to find a verdict for plaintiff, even though the jury believed the negligent acts therein hypothesized only contributed to cause his injuries. Hof v. Railroad, 111 S.W. 1166; Smith v. Hardesty, 31 Mo. 411. (4) Plaintiff's instruction 4 is erroneous because it permitted a finding for plaintiff if the jury believed the motorman could have averted the collision by stopping the car, instead of directing a finding for plaintiff, as it should have done, in the event the jury believed the car could have been stopped, with safety to the passengers, in time to have avoided the collision. Bell v. Railroad, 72 Mo. 60.
Henry H. Oberschelp and Seddon & Holland for respondent.
(1) The court did not err in giving instructions 1-3. The fact that respondent asked instruction 4 based on the humanitarian rule did not constitute an admission on his part that he was guilty of contributory negligence. (2) The court did not err in giving instructions 1, 2 and 3 at the instance of respondent. Respondent was not guilty of contributory negligence as a matter of law. Heintz v. Railroad, 115 Mo.App. 667; Murray v. Railroad, 108 Mo.App. 501; Sommers v. Railroad, 108 Mo.App. 319; Imkamp v. Railroad, 108 Mo.App. 655; Deitering v. Railroad, 109 Mo.App. 524; Powers v. Railroad, 202 Mo. 267; Peterson v. Railroad, 114 Mo.App. 374; Priesmeyer v. Railroad, 102 Mo.App. 518; Joyce v. Railroad, 111 Mo.App. 565; Hartman v. Railroad, 112 Mo.App. 439; Hall v. Railroad, 124 Mo.App. 661; Parker-Washington v. Railroad, 109 S.W. 1073. (3) The court did not err in giving instructions 1 and 3 at the instance of respondent. Said instructions fulfilled the requirements of the law in predicating a recovery on the negligence of appellant directly contributing to cause the injury of respondent, provided the latter exercised ordinary care. Riska v. Railroad, 180 Mo. 184; Bassett v. St. Joseph, 53 Mo. 290; Brash v. St. Louis, 161 Mo. 433; Bragg v. Railroad, 192 Mo. 331; Vogelsang v. St. Louis, 139 Mo. 136; Harrison v. Electric Light Co., 195 Mo. 606; Smith v. Fordyce, 190 Mo. 21. (4) The court did not err in giving instruction 4 at the instance of respondent. Said instruction properly stated the humanitarian rule in allowing a recovery if appellants' motorman, after he saw respondent in a position of danger, failed to exercise ordinary care to avoid injuring him. Rapp v. Railroad, 190 Mo. 144; Eppstein v. Railroad, 197 Mo. 720; Chamberlain v. Railroad, 133 Mo. 587; Sullivan v. Railroad, 117 Mo. 214.
OPINION
In Banc
I have adopted the statement of the case as made by Valliant, J., in his opinion delivered in Division One, which is as follows:
Plaintiff recovered a judgment for $ 15,000 against both the defendants as damages for personal injuries suffered by him in consequence of a wagon, in which he was riding as driver of the team of horses, being struck by a street car which was being operated at the time by the St. Louis Transit Company, on a street railway track belonging to the United Railways Company. From that judgment both defendants have appealed.
The petition charges that the defendants owned and operated the street railway and cars. The acts of negligence charged are: (1) Running the car at a speed in excess of eight miles an hour in violation of a city ordinance. (2) Operating the car at a rate of speed that was negligent under the circumstances. (3) Failing to sound the gong. (4) Negligently failing to stop the car to avoid the collision after the motorman saw the position of peril in which plaintiff was.
The answer was a general denial and a plea of contributory negligence.
There is not much, if any, dispute about the facts. The plaintiff was driving a two-horse wagon loaded with empty boxes. He was sitting on the driver's seat in the wagon directly over the front wheels, and about four feet behind the horses. There were flanges on the sides of the wagon; the boxes were piled up high behind the driver and on each side of him, extending above his head about two feet, intercepting his view on either side. The length of the outfit from the rear of the wagon to front of the horses was about twenty-five feet.
Carr street runs east and west. There was a single track street railway in Carr street, on which the cars were operated from west to east. Going east a car would cross in succession Fifteenth, Fourteenth and Thirteenth streets. This accident occurred at the intersection of Thirteenth street. From Fourteenth to Thirteenth street the distance is 310.7 feet. Half way between Fourteenth and Thirteenth is an alley. Carr street is sixty feet wide, with a sidewalk twelve feet wide on each side, leaving a roadway from curb to curb thirty-six feet wide. The houses on the north side of the street came out to the building line.
Thirteenth street was at that time the only street between Fifteenth and Broadway (which by its number would be Fifth street) on which there was no railway track and it was a much traveled street. The plaintiff was coming from a point north of Carr street driving south on Thirteenth. When he got to the building line on the north side of Carr street he looked to the east and to the west and he saw a street car at Fourteenth street coming east, his horses were going at a walk and he testified that he thought he had time to cross the track in safety, therefore proceeded on his way. When the front part of his wagon was on the track he again saw the car, it was then at the alley in the middle of the block between Fourteenth and Thirteenth streets, about one hundred and fifty feet distant; after that, because the boxes were piled up on both sides of him, he could not see the car again, but he still thought, as he testified, that he would cross in safety. But before the wagon had cleared the track the car struck the rear part of the hind wheel with such force that the plaintiff was thrown to the street and some of the boxes fell on him. He was seriously injured.
The testimony tended to show that the car was going unusually fast, that it was going twice as fast as usual at that point; the rate was estimated at fifteen to eighteen miles an hour. The testimony was that it was going with such momentum that after striking the wagon it went a considerable distance into the next block.
The plaintiff called the defendant's motorman as a witness presumably to prove that it was a car of the transit company and that he was in the service of that company, but he was also asked about the equipment of the car and to give his understanding as to how the accident occurred. He testified that the car was well equipped, brake, sandbox, reverse and all in good order. He testified that when he first saw the wagon and team they were just coming into Carr street, and he was about two car-lengths distant, that is, about sixty-four feet; he sounded the gong and...
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