Linders v. Peoples Motorbus Co.

• Citation: 32 S.W.2d 580
• Decision Date: 18 November 1930
• Docket Number: No. 27614.,27614.
• Parties: MARCELIS C. LINDERS, Appellant, v. PEOPLES MOTORBUS COMPANY of St. Louis.
• Court: Missouri Supreme Court

32 S.W.2d 580

MARCELIS C. LINDERS, Appellant, v. PEOPLES MOTORBUS COMPANY of St. Louis.

No. 27614.

Supreme Court of Missouri, Division One.

November 18, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Victor H. Falkenhainer, Judge.

REVERSED AND REMANDED.

Louis J. Robinson and Earl M. Pirkey for appellant.

(1) Instruction 7 was error. Contributory negligence was pleaded and as to this issue defendant carried the burden. Instruction 7 places the burden of the entire case on the plaintiff and this was prejudicial error. Moreover there are three charges of negligence in the petition, which are supported by the evidence. These are the last-chance doctrine, the failure to warn and the failure to stop at the rear of the street car while it was receiving and discharging passengers and where there was no safety zone. Instruction 7 treats these three as one charge and requires plaintiff to prove all of these charges before he can recover. This also is error as plaintiff could recover on any one of the three charges of negligence and was not required to prove all three. Roemer v. Wells, 257 S.W. 1056; Mecker v. Electric L. & P. Co., 279 Mo. 602; Gannon v. Gas Co., 145 Mo. 511; Spaulding v. St. Ry. Co., 129 Mo. App. 612; Feddeck v. Car Co., 125 Mo. App. 24; Knox Hat Co. v. Goggin, 105 Mo. 182. (2) Instruction No. X given at the request of defendant was error. The law required the defendant to stop the motorbus at the rear of the street car. Plaintiff supposed this would be done and attempted to follow the other alighting passengers from the street car to the curb. After he had seen the bus 30 to 40 feet away at a slow speed and supposing it would stop, he did not further look as he relied on the belief that defendant would observe the law and stop the bus at the rear of the street car. When defendant determined to do otherwise and run between the street car and the curb it should have announced its intention of doing so by a warning. Therefore, the foregoing instruction incorrectly withdraws from the consideration of the jury a vital matter both pleaded and proven. Woods v. Rys. Co., 199 Mo. App. 348. The instruction withdraws an element necessary in considering the question of contributory negligence and is therefore erroneous. Althage v. Peoples Motorbus Co., 8 S.W. (2d) 924; Reith v. Taber, 8 S.W. (2d) 607. Defendant instructed on contributory negligence. If the bus intended to go between the street car and the curb in violation of the law it should have given warning of this. Defendant's Instruction 10 withdraws this neglect of defendant from the consideration of the jury and this was prejudicial, as the jury should take into consideration the failure to sound a warning in passing on the question of contributory negligence. (3) Instruction No. XI given at the request of defendant, was error. It is written in what is known in the law of rhetoric as a very obscure style. It is confusing and unintelligent in parts, but this much, it clearly declares, that is, that if plaintiff got in the path of the motorbus when it was approaching he cannot recover except under the last-chance doctrine. If the bus was a sufficient distance away and coming slowly and the law required it to stop at the rear of the street car then plaintiff had the right to cross the path of the motorbus and it was prudent and proper for him to do so, but the instruction denounces such conduct as contributory negligence and it therefore misdirects the jury. It does not require a second reading of the instruction to see that it is a very vicious incorrect instruction and never should have been given. Besides, there is no evidence that plaintiff did any of the things laid down in the instruction and it is therefore incorrect for this reason also. Hardcastle v. Pullman Co., 10 S.W. (2d) 933.

Carter, Jones & Turney for respondent.

(1) Defendant's Instruction 7 is not erroneous. Denkman v. Prudential Fixture Co., 289 S.W. 594. (2) Defendant's Instruction No. X was properly given and the giving of such instruction was not erroneous. Shumate v. Wells, 9 S.W. (2d) 635; Schroeder v. Wells, 319 Mo. 651, 276 S.W. 60; Clift v. Railway Co., 9 S.W. (2d) 977; Lovett v. Terminal Railroad Co., 316 Mo. 1255; Nahorski v. Electric Term. Railroad Co., 310 Mo. 237; Reith v. Tabor, 8 S.W. (2d) 607. (3) Defendant's Instruction No. XI was proper and was based upon the contributory negligence set forth in defendant's answer and the evidence in the case, and said instruction was therefore not erroneous.

GANTT, P.J.

Action to recover fifteen thousand dollars for personal injuries. Plaintiff, a passenger on an eastbound street car on Washington Avenue, in St. Louis, Mo., alighted therefrom at Sixth Street. While on the step of the car and in the act of alighting, he saw defendant's motorbus thirty or forty feet west of the standing street car and approaching Sixth Street on the south side of Washington Avenue at six miles an hour. He then stepped to the street, and, without again looking toward the approaching bus, proceeded toward the south curbing of the avenue fifteen feet from the street car. Thus proceeding, he was struck by the motorbus, knocked to the pavement and injured. At the time and just before he was injured, passengers were alighting from and boarding the street car. The motorbus is seven feet and nine and one-half inches at its widest point. There was evidence tending to show there was no safety zone, and evidence tending to show there was a safety zone at this point. There was also evidence tending to show that the bus traveling at six miles an hour could have been stopped in nine or less feet.

Plaintiff charged negligence as follows: Violation of the humanitarian rule; failure to warn plaintiff of the approach of the bus, and failure to stop the bus at the rear of the street car while it was receiving and discharging passengers.

Plaintiff abandoned the charge of failure to warn, and the cause was submitted on the other charges of negligence. The issue of contributory negligence was submitted by an instruction at the request of defendant. The defendant had a verdict, judgment accordingly, and plaintiff appealed.

Plaintiff challenges three instructions given at the request of defendant. The first instruction follows:

"The charge made by plaintiff against defendant is one of negligence which cannot be presumed. In other words, recovery may be had on a charge of negligence only when such charge Burden of is sustained by the preponderance, that is, the Proof. greater weight of credible evidence, and it does not devolve upon defendant to disprove the charge. On the contrary, the law casts the burden of proof with respect to it upon plaintiff. If, therefore, you find the evidence to be evenly balanced after fairly considering it, your verdict should be for the defendant."

Plaintiff contends the instruction is erroneous for reasons as follows: (1) It directs the jury that plaintiff cannot recover unless he proves all the charges of negligence alleged in the petition. (2) It refers the jury to the pleadings to determine the charges of negligence. (3) It requires plaintiff to prove he was not guilty of contributory negligence.

The instruction simply informs the jury that the action is a...