Lackey v. United Railways Company of St. Louis

• Decision Date: 26 May 1921
• Parties: RUBY LACKEY v. UNITED RAILWAYS COMPANY of ST. LOUIS, Appellant
• Court: Missouri Supreme Court

231 S.W. 956

288 Mo. 120

RUBY LACKEY v. UNITED RAILWAYS COMPANY of ST. LOUIS, Appellant

Supreme Court of Missouri, Second Division

May 26, 1921

Appeal from St. Louis City Circuit Court, -- Hon. J. Hugo Grimm Judge.

Reversed and remanded.

Charles W. Bates and T. E. Francis and Albert D. Nortoni for appellants.

(1) The court should have given appellant's instruction in the nature of a demurrer to the evidence and peremptorily directed a verdict for it because: (a) The negligence of decedent so clearly appears on the evidence contributing directly to the collision and his consequent injuries and death as to preclude respondent's right of recovery as a matter of law. Schmidt v. Ry. Co., 191 Mo. 215; Laun v. Ry. Co., 216 Mo. 578; Keele v. Ry Co., 258 Mo. 78; Green v. Ry. Co., 192 Mo. 131; Vandeventer v. Ry. Co., 177 S.W. 838; State ex rel. Peters v. Reynolds, 214 S.W. 123; Mockowik v Ry. Co., 196 Mo. 550; Stotler v. Ry. Co., 204 Mo. 619; Guyer v. Ry. Co., 174 Mo. 344; Dyrcz v Ry. Co., 238 Mo. 46, 47; Rollinson v. Ry. Co., 252 Mo. 543; Gubernick v. Rys. Co., 217 S.W. 33; Holland v. Ry. Co., 210 Mo. 338; Boring v. Ry Co., 194 Mo. 251; Roenfeldt v. Ry. Co., 180 Mo. 554. (b) Even though the street car was running in excess of the ordinance speed, this does not absolve decedent from the duty to exercise ordinary care to look and listen in the interest of his own safety before going upon the track. Schmidt v. Ry. Co., 191 Mo. 229; Laun v. Ry. Co., 216 Mo. 579; Stotler v. Ry. Co., 204 Mo. 637; Green v. Ry. Co., 192 Mo. 142; Weller v. Ry. Co., 120 Mo. 653; Kenney v. Ry. Co., 105 Mo. 284; Holland v. Ry. Co., 210 Mo. 351. (c) Although in some cases, where nothing to the contrary appears, persons deceased are presumed to have exercised ordinary care for their own safety in approaching the track, no such presumption obtains on this record to be utilized in aid of the verdict, for that the facts in evidence rebut, overcome and dispel any such presumption. Schmidt v. Ry. Co., 191 Mo. 232; Burge v. Ry. Co., 244 Mo. 94; State ex rel. Peters v. Reynolds, 214 S.W. 123; Higgins v. St. Louis Ry. Co., 197 Mo. 318; Weller v. Ry. Co., 120 Mo. 650. (d) Presumptions have no place in the presence of actual facts disclosed to the jury, or when plaintiff should have known the facts had he exercised ordinary care. Mockowik v. Ry. Co., 196 Mo. 572; Bragg v. St. Ry. Co., 192 Mo. 354; Nixon v. Ry. Co., 141 Mo. 439; Reno v. Ry. Co., 180 Mo. 483; State v. Swearengin, 269 Mo. 186; Sowders v. Ry. Co., 127 Mo.App. 124. (e) Neither may a pedestrain presume that a car is not running in excess of the ordinance speed when he did not see the car. Reno v. Ry. Co., 192 Mo. 142; Green v. Ry. Co., 192 Mo. 142; Stotler v. Ry. Co., 204 Mo. 619 and authorities cited supra, paragraphs (c) and (d). (f) "That which the decedent could have learned by the exercise of ordinary care (in approaching the crossing) will be imputed to him as a known fact." State ex rel. Peters v. Reynolds, 214 S.W. 123; Vandeventer v. Ry. Co., 177 S.W. 838; Peters v. Lusk, 200 Mo.App. 382; Schmidt v. Ry. Co., 191 Mo. 215; Laun v. Ry. Co., 216 Mo. 578; Stotler v. Ry. Co., 204 Mo. 639. (g) There is no humanitarian or last-clear-chance doctrine in the case because the petition does not state facts sufficient to constitute a cause of action thereon, in that it is not averred that decedent was oblivious, or that the motorman either saw, or might, by the exercise of ordinary care, have seen, that he was oblivious to the peril. Knapp v. Dunham, 195 S.W. 1062; Rubick v. Sandler, 219 S.W. 406; Marshall v. Rys. Co., 205 S.W. 971; Stark v. Bingaman, 223 S.W. 946. (h) There was no duty on the part of the motorman to commence the stopping of the car until he saw, or might, by the exercise of ordinary care, have seen, that decedent was both in peril and was oblivious thereto, for until then the motorman was justified in assuming that he would hear the sounding of the gong and stop before coming upon the track in a place of danger. Schmidt v. Ry. Co., 191 Mo. 233, 234; Keele v. Ry. Co., 258 Mo. 79; Guyer v. Ry. Co., 174 Mo. 351; Reno v. Ry. Co., 180 Mo. 489; Roenfeld v. Ry. Co., 180 Mo. 366; Knapp v. Dunham, 195 S.W. 1062; Stark v. Bingaman, 223 S.W. 946; Rubnick v. Sandler, 219 S.W. 406; Marshall v. Railroad Co., 205 S.W. 973; Schall v. Rys. Co., 212 S.W. 891; Veatch v. Wabash Ry. Co., 145 Mo.App. 240; Rollinson v. Ry. Co., 252 Mo. 537, 538; Bennett v. Ry. Co., 122 Mo.App. 714; Markowitz v. Ry. Co., 186 Mo. 358; Sanguinette v. Railroad Co., 196 Mo. 497; Pope v. Ry. Co., 242 Mo. 240; Hebeler v. Ry. Co., 132 Mo.App. 551; Reeves v. Ry. Co., 251 Mo. 178; Schupp v. Ry. Co., 166 Mo.App. 597. (i) Even though decedent was walking east and looking to the northeast, the motorman was not required to commence the stopping of the car until he discovered that he did not heed the sounding of the gong and appeared notwithstanding to be oblivious thereto, for until then the motorman could assume that decedent would hear the gong and stop before coming upon the track. Schmidt v. Ry. Co., 191 Mo. 234; Bennett v. Ry. Co., 122 Mo.App. 714; Aldrich v. Transit Co., 101 Mo.App. 88; Keele v. Ry. Co., 258 Mo. 79; Candee v. Ry. Co., 130 Mo. 152; Chamberlain v. Ry. Co., 133 Mo. 604, 605; Sinclair v. Ry. Co., 133 Mo. 243; Pope v. Ry., 142 Mo. 240; Reeves v. Ry. Co., 251 Mo. 177; Veatch v. Ry. Co., 145 Mo.App. 240; Hebeler v. Ry. Co., 132 Mo. 551. (j) "Negligence is a positive wrong and will not be presumed," but must be proven. Witting v. Railroad Co., 101 Mo. 640. (k) "It requires more than the showing of a mere possibility that an accident might have been avoided in order to bring the case within the humanitarian or last-clear-chance doctrine." Markowitz v. Met. St. Ry., 186 Mo. 359; White v. Ry., 159 Mo.App. 614. (l) "Mere error of judgment on the part of the motorman does not suffice to show negligence." Roenfeld v. Ry. Co., 180 Mo. 567; Bennett v. Ry. Co., 122 Mo.App. 713. (m) There being no duty on the motorman to commence the stopping of the car until he saw, or by the exercise of ordinary care could have seen, that decedent was not going to heed the sounding of the gong and that he was therefore in peril and oblivious to both such gong and such peril, because of his failure to heed such gong, and there being no evidence as to the distance the street car was away from decedent at that time, it cannot be inferred that the car could have been stopped by the use of ordinary care, with the appliances at hand for that purpose, while running at thirty miles per hour, for to do so would involve the piling of one inference on a prior inference and this the law will not tolerate. Hamilton v. Ry. Co., 250 Mo. 722; Whitesides v. Railroad Co., 186 Mo.App. 618; Glick v. Railroad Co., 57 Mo.App. 104. (n) In view of the affirmative evidence of respondent's expert motorman, to the effect that it would require from 115 to 120 feet space in which to stop the car, and his positive statement that it could not be stopped between a point at fifty feet south of the south line of Plymouth avenue and the center line of the north sidewalk on Plymouth avenue, where decedent was struck, the finding that the car could have been stopped and the collision averted between the time the motorman discovered, or could by the exercise of ordinary care discover, that decedent did not heed the gong, and that because of that fact he appeared to be oblivious of the danger and was therefore in peril, is not founded upon a "basis of fact," but rather rests alone upon mere guess or the "fog of conjecture." McGee v. Ry. Co., 214 Mo. 543; White v. Mo. Pac., 159 Mo.App. 513; Guyer v. Ry. Co., 174 Mo. 351; Battles v. Rys. Co., 178 Mo.App. 519; Green v. Ry. Co., 192 Mo. 140; Veatch v. Wabash Ry. Co., 145 Mo.App. 232; Hamilton v. Railroad Co., 250 Mo. 722; Whitesides v. Railroad, 186 Mo.App. 618. (o) The last-clear-chance doctrine does not obtain where both parties are actively and contemporaneously negligent, until it is too late to prevent the accident, for in such circumstances plaintiff's negligence is not remote, but rather is active and proximate in the chain of causation, so as to be regarded in the eye of the law as concurrent in point of time. Watson v. Ry. Co., 133 Mo. 250, 251; Reeves v. Ry. Co., 251 Mo. 178; Pope v. Ry., 242 Mo. 240; Everett v. Ry. Co., 42 P. 219; Ross v. Ry. Co., 132 Mo.App. 480. (2) The court should have excluded the Vigilant Watch Ordinance, of the City of St. Louis, from evidence on defendant's objection, because it was not pleaded and the ordinance was not competent under the averments wherein a breach of the humanitarian or last-clear-chance doctrine is sought to be alleged, because it is not in keeping with that doctrine, in that its words import a broader obligation, which entirely omits and ignores essential obliviousness to peril under this doctrine. Knapp v. Dunham, 195 S.W. 1062; Stark v. Bingaman, 223 S.W. 946; Rubick v. Sandler, 219 S.W. 401. (3) The court should have excluded from evidence Section 2386, Revised Code of St. Louis for 1912, touching the matter of cars stopping at a corner on a signal by a proposed passenger on appellant's objection, also the evidence that Hadley waved because this ordinance was not pleaded, and even if it were, in no view did it raise any duty in favor of decedent, a pedestrian crossing the street and moreover the evidence, that Hadley waved was prejudicial. (a) It was not competent on the theory that decedent saw Hadley on the southeast corner wave for the car to stop and that he therefore presumed on the ordinance that the car would stop on such signal, because the evidence is undisputed and conclusive that he did not see Hadley wave at the car, and in such circumstances a mere presumption may not be indulged to establish a...