Luecke v. United Rys. Co. of St. Louis

• Decision Date: 04 January 1910
• Citation: 146 Mo. App. 500,126 S.W. 200
• Parties: LUECKE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

126 S.W. 200

146 Mo. App. 500

LUECKE v. UNITED RYS. CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

January 4, 1910.

Rehearing Denied March 8, 1910.

TRIAL (§ 296) — INSTRUCTIONS — CONSTRUCTION OF CHARGE AS A WHOLE.

Where, in an action for injury in a collision with a street car, plaintiff alleged failure to sound the gong or warning signal, to keep a proper lookout, and violation of the speed ordinance, and the answer was a general denial and a plea of contributory negligence, and the evidence tended to sustain the allegations of the petition, but showed no negligence of plaintiff, and the jury were distinctly restricted, in determining the negligence of defendant rendering it liable, to the causes of the accident set out in the petition, instructions authorizing recovery if defendant's negligence "directly contributed" to the injury, though failing to exclude the idea that, if plaintiff's negligence concurred in producing the injury, he could not recover, were harmless.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Anton W. Luecke against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action by plaintiff for the recovery of damages alleged to have been sustained by him by reason of a car of the defendant colliding with him, his buggy, and horse on Delmar boulevard, between Skinker road and the Wabash Railroad tracks, in the city of St. Louis. It is averred in the petition, first, that the collision was the result of the negligence of defendant's motorman in charge of the car, in running it at a rate of speed in excess of that permitted by an ordinance of the city which limits the maximum speed of cars at the place of collision to 15 miles per hour; second, failure to give plaintiff warning of the approach of the car; third, failure to use ordinary care in discovering plaintiff's peril, and avoiding the collision by stopping the car after the motorman saw, or by ordinary care, could have seen, plaintiff's perilous situation on or near the track. Damages are claimed in the amount of $4,200. The answer was a general denial, accompanied by the plea of contributory negligence in driving on the track immediately in front of a moving car. On a trial before the court and jury evidence in the case was given on the part of plaintiff tending to sustain the allegations in his petition. On part of defendant there was evidence tending to show that the motorman did not see plaintiff until it was too late to stop the car; that the car was going at about 10 or 11 miles an hour, and because of the darkness of the night and confusion in his vision by reason of being required to keep the front door of the car open, a light was thrown from the door in such manner as to prevent the motorman from discovering plaintiff, and that immediately upon the discovery of the plaintiff, the motorman did everything in his power to avoid the collision.

At the instance of plaintiff the court gave two instructions, marked "Plaintiff's Instructions 2 and 3." At its own instance the court gave instructions marked, "Court's Instructions No. 1 and No. 2." At the instance of the defendant the court gave instructions marked "Nos. 1, 2, and 3." Defendant asked an instruction marked "No. 8," which the court refused to give. The instructions referred to are substantially as follows: Plaintiff's No. 1 told the jury that, if they found from the evidence that on the day named plaintiff was walking upon or in close proximity to the tracks, in a position of peril or in danger of being struck by a car operated on defendant's railway, and that the motorman, by the exercise of reasonable care and diligence, could have discovered the peril in which plaintiff was placed in time to have avoided the injury, and that the motorman negligently and carelessly failed to stop the car after the peril was seen by him, or that by the exercise of reasonable care the motorman could have seen the plaintiff and have avoided the injury, with the means and appliances at his command, and with safety to passengers, and that the collision between the car of the defendant and the buggy occurred by reason of such negligence on the part of the motorman, the finding should be for the plaintiff.

The second instruction given at instance of plaintiff is as follows: "2. The court instructs the jury that, even though you should find from the evidence that the defendant's motorman, after he saw the perilous position of the plaintiff, used all the means at his command to stop the said car in time to avoid injuring the plaintiff, yet if you also find that the said car was running at a speed in excess of 15 miles an hour, and that such rate of speed in excess of 15 miles an hour directly contributed to the collision, if any, and if you further find that the plaintiff was exercising ordinary care while he was upon or in close proximity to the tracks of the defendant at and immediately prior to the time when he was struck by the defendant's said car, then you verdict should be for the plaintiff."

The third instruction given at the instance of plaintiff is based upon the alleged failure of the motorman to sound a gong or a warning signal, and concludes in this language: "And if you find that the failure to sound a gong or warning signal directly contributed to the injury of plaintiff, if any, and if you further find that said car struck plaintiff while he was in such position, and while plaintiff himself was in the exercise of reasonable and ordinary care, and that he was injured as the direct result of such negligence, if any, of said motorman, then your verdict should be for the plaintiff."

The first instruction given by the court at its own motion, in substance, told the jury that, if it believed from the evidence that the injury of the plaintiff was caused by the joint, mutual, and concurring negligence of plaintiff and defendant's motorman, and that the negligence of neither without the concurrence of the negligence of the other would have caused the injury, plaintiff was not entitled to recover, unless the jury further found, "that after plaintiff by his own negligence had been placed in a position of peril, the motorman of defendant's car either discovered, or by the exercise of ordinary care could have discovered, such peril in time to have stopped said car and avoided such injury, with the means and appliances at hand, and without danger to the passengers upon said car, as in other instructions more fully defined."

The second instruction given by the court at its own motion is as follows: "(2) If you believe from the evidence in this case that the plaintiff could, by the exercise of ordinary care, have seen or heard the car in time to have stepped off of the track and into a place of safety before the collision occurred, and that he failed to do so, and that such failure on his part directly contributed with the alleged negligence of the motorman submitted to you by other instructions, if you find that the motorman was guilty of negligence as submitted, and that but for the failure of plaintiff to exercise ordinary care in discovering...