Latson v. St. Louis Transit Company

• Decision Date: 21 December 1905
• Parties: LATSON v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

91 S.W. 109

191 Mo. 449

LATSON v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division One

December 21, 1905

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Boyle Priest & Lehmann, J. W. Jamison, John T. Gose, George W Easley and Edward T. Miller for appellant.

(1) Defendant's answer set up contributory negligence of plaintiff and it was error to give an instruction excluding this defense. Foster v. Guggemos, 98 Mo. 391; Holiday-Klotz v. Tie Co., 87 Mo.App. 167; Schmidt v. Railroad, 149 Mo. 269; Cameron v Hart, 57 Mo.App. 142; Standfield v. Loan Assn., 53 Mo.App. 595. (2) In plaintiff's petition there is no allegation that after defendant's motorman saw plaintiff's position of peril he failed to stop the car when he could have done so by the exercise of ordinary care, nor is there any allegation of intent to injure or willfulness or wantonness on the part of the defendant. This issue not being raised by the pleadings directly or indirectly, should not have been submitted in this instruction. Holwerson v. Railroad, 157 Mo. 216; De Donato v. Morrison, 160 Mo. 581; Wolf v. Lodge, 160 Mo. 675; Kenney v. Railroad, 70 Mo. 255; Storms v. White, 23 Mo.App. 31; Melvin v. Railroad, 89 Mo. 106; Scott v. Allendaugh, 50 Mo.App. 130; Sedalia Gas Light Co. v. Mercer, 48 Mo.App. 644. (3) There is not a word of evidence to show that after defendant's motorman saw the car he could, either by the use of ordinary or extraordinary care, have stopped the same in time to have prevented the collision. It is error to instruct a jury on a matter as to which there is no evidence. Brayhill v. Norton, 74 S.W. 1024; Center Creek, etc., v. Frankenstein, 78 S.W. 785; Kimball v. Railroad, 87 S.W. 1099; Chambers v. Railroad, 86 S.W. 501; Stephens v. Metzger, 95 Mo.App. 610. (4) We are unable to even guess at the reason for the refusal of instruction 5 unless we assume that the court refused to permit the jury to consider defendant's evidence at all. Defendant introduced evidence to show that the vehicle was turned upon the track suddenly in front of defendant's car, and that immediately upon observing that plaintiff was coming upon the track, the motorman attempted to stop the car but was unable to do so. There was evidence to support this instruction and it is based upon the law. Watson v. Railroad, 133 Mo. 251; Ries v. Railroad, 179 Mo. 1; Sinclair v. Railroad, 133 Mo. 245; Hook v. Railroad, 162 Mo. 569; Culbertson v. Railroad, 140 Mo. 33; Boyd v. Railroad, 105 Mo. 371; Huggert v. Railroad, 134 Mo. 673. (5) Defendant's instruction numbered 8 is a clear statement of the law and its refusal by the court was error. Sinclair v. Railroad, 133 Mo. 245; Culbertson v. Railroad, 140 Mo. 35; Vogg v. Railroad, 138 Mo. 172; Holwerson v. Railroad, 157 Mo. 227; Moore v. Railroad, 176 Mo. 497; Tanner v. Railroad, 161 Mo. 497; Reno v. Railroad, 79 S.W. 464; Ries v. Railroad, 179 Mo. 1. (6) Where one is placed in a position of peril through the negligence of another, if, after discovering that peril, he could by the exercise of ordinary care avoid the consequences of that other's negligence, but fails to do so, then he cannot recover for resulting injuries. Cooley on Torts (2 Ed.), p. 812; Nellis St. Ry., pp. 383-4; 7 Am. and Eng. Ency. Law (2 Ed.), 385-6; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Gettys v. Railroad, 78 S.W. 82; Sinclair v. Railroad, 133 Mo. 245; Murphy v. Railroad, 153 Mo. 261; Fanning v. St. L. T. Co., 78 S.W. 62; Reno v. Railroad, 79 S.W. 464; Killian v. Railroad, 86 Mo.App. 473; Peterson v. Railroad, 156 Mo. 52; Klockenbrink v. Railroad, 81 Mo.App. 351; Zamault v. Railroad, 73 S.W. 1015. One cannot, as this plaintiff did, close his eyes and remain in what he knows to be a perilous position and blindly trust to another to avoid the consequences or to take more care for his safety than he himself takes. Davies v. Railroad, 159 Mo. 1; Tanner v. Railroad, 161 Mo. 497; Maxey v. Railroad, 113 Mo. 1; Jones v. Barnard, 63 Mo.App. 501; Evans v. Railroad, 178 Mo. 517. If it be admitted that defendant violated both the vigilant watch and speed ordinances (and the violation of these two ordinances is the only negligence alleged in the petition), it is still clear that plaintiff could not recover because her own evidence shows that neither the violation of the vigilant watch ordinance nor the violation of the speed ordinance was the proximate cause of the accident. Tanner v. Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 528; Vogg v. Railroad, 138 Mo. 172; Van Bach v. Railroad, 171 Mo. 338. (7) The verdict of the jury was grossly excessive. Stolze v. Railroad, 87 S.W. 517; Chitty v. Railroad, 166 Mo. 442.

Chester H. Krum and William Zachritz for respondent.

MARSHALL, J. Brace P. J., absent.

OPINION

MARSHALL, J.

This is an action to recover $ 20,000 damages for personal injuries received by the plaintiff on the 25th of May, 1901, in consequence of one of defendant's cars colliding with the rear of a stanhope in which the plaintiff was riding, on Olive street, between Tenth and Eleventh streets, in the city of St. Louis -- the accident occurring about 9:25 a. m. The plaintiff recovered a judgment for $ 9,000, and the defendant, after proper steps, appealed.

THE ISSUES.

The negligence charged in the petition is a violation by the defendant of the vigilant watch ordinance, and of the speed ordinance, of the city of St. Louis. The answer is a general denial, with a special plea, that whatever injuries the plaintiff received were caused by the vehicle in which she was riding being driven in front of the car "so close thereto as to render a collision therewith unavoidable."

The reply is a general denial.

The plaintiff introduced evidence tending to show that on the morning of the day on which the accident occurred, she was riding in a stanhope with Mrs. Ramm; that they stopped on the east side of Eleventh street, just south of Olive street, for a few moments, where plaintiff left the vehicle to transact some business in a store at that point; that Mrs. Ramm then turned, and by reason of vehicles being on the east side of Eleventh street, she had to go to the west side of that street, and thence to Olive street, where she turned east; that there was a vehicle coming west on the south side of Olive street between the car track and the curbstone, in consequence of which she drove onto the east-bound track; that before so doing she looked westwardly and saw a car coming, which was, at that time, west of the west line of Twelfth street. The width of Twelfth street is not given in the record, but the block from Twelfth to Eleventh is shown to be 469 feet; that the reason she turned onto the street car track was to avoid collision with the vehicle that was coming west on the south side of Olive street; that, in the language of Mrs. Ramm, "I had the right of way, but this rig had possession of the driveway; it was necessary for me to drive in the car track;" that after getting onto the car track, she again looked back and saw the car on the east side of Twelfth street; that afterwards she left the plaintiff to watch the car, while she directed her attention to the front; that the plaintiff then looked a third time, and the car was at the east side of Eleventh street; that the plaintiff then looked a fourth time, and the car was about to strike them, and she told Mrs. Ramm to get off of the track as quickly as possible; that Mrs. Ramm did not leave the track immediately after encountering the first vehicle coming west, because there was a second vehicle also coming west, on the car track, and so close to the first that it was impossible for her to leave the track, until the second vehicle had pulled off of the track onto the driveway, and in doing it the wheels of that vehicle caught or slid on the track, which made it necessary for her to check her horse momentarily; that they were driving at a walk; that as soon as the second vehicle got out of the way, Mrs. Ramm immediately commenced to turn off of the track onto the driveway south thereof, but before she had succeeded in clearing the track, the car struck the hind wheel of the stanhope, lifted it about two or more feet above the ground, and the occupants were thrown out, and the plaintiff injured. The vehicle in which the plaintiff was riding went eastwardly eighty-two feet on the track on Olive street before the car collided with it. Mrs. Ramm testified that the reason she did not turn to the left was because there was a west-bound track on that side of the street, and also because there were other vehicles on that side of the street, and that to turn to the left would have been an illegal act.

The evidence for the plaintiff further showed that the car was traveling at a speed of fifteen miles an hour. Prior to the accident the plaintiff was in good health and weighed about 180 pounds. In consequence of the accident she received injuries to her side, ankle, uterus, spine and nerves, and, as one of the medical experts said, is now suffering from traumatic neurosis, and as the other medical expert said, "Her condition is one, now, of nervous debility and exhaustion, irritability of the spinal cord, pain, and that kind of disturbance which comes to the mind from the brain being disordered by a shock, the brain and spinal cord. She had a displacement of the uterine organs." Her physician advised leisure and rest as the best means of effecting a cure; in consequence of which she visited New Mexico, Alabama and Cape Girardeau, Missouri, but at the time of the trial was still suffering, and the medical experts said the probabilities were she would not fully recover.

The plaintiff read in evidence the...