Maness v. Joplin & Pittsburg Railway Company
| Decision Date | 07 July 1910 |
| Parties | STEPHEN H. MANESS, Respondent, v. JOPLIN & PITTSBURG RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. D. E. Blair, Judge.
Judgment affirmed.
Perkins & Blair, and Edward C. Wright for appellant.
(1) Even if the record discloses negligence on the part of the appellant, and we claim it does not, it is still true that its violation of duty does not render it liable for an injury resulting from the injured person's own negligence in failing to stop and look and listen, before going upon appellant's track, as to bar him of recovery and his negligence continued up to the time of the collision. Asphalt Co. v. St. Louis Co., 102 Mo.App. 469; Murray v. St. Louis Co., 176 Mo. 183; McManamee v. Railroad, 135 Mo. 440; Hudson v. Railroad, 123 Mo. 445; Payne v. Railroad, 136 Mo. 562; Peterson v. St. Louis Co., 156 Mo. 552; Sharp v Railroad, 161 Mo. 214; Tanner v. Railroad, 161 Mo. 497; Reno v. St. Louis Co., 180 Mo. 469; Schmidt v. Railroad, 191 Mo. 215; Green v Railroad, 192 Mo. 131; Kintag v. Railroad, 65 F. 391; Schofield v. Railroad, 114 U.S. 615, 29 Law Ed. 224. (2) Upon the entire record it appears conclusively that no cause of action vested in the plaintiff and the only judgment possible under the law and the evidence, was for the defendant, and this cause should be reversed. Hickman v Union Co., 47 Mo.App. 65; Bunyan v. Citizens Co., 127 Mo. 12; Weaver v. Benton Co., 60 Mo.App. 207; Barrie v. St. Louis Co., 102 Mo.App. 87; Conrad Grocer Co. v. St. Louis Co., 89 Mo.App. 534; Kelley v. Railroad, 75 Mo.App. 140; Smith v. Railway, 61 Mo. 558; Meyers v. Railroad, 103 Mo.App. 268; Hogan v. Citizens Co., 150 Mo. 36; Zumalt v. K. C. Co., 175 Mo. 288; Stepp v. Railroad, 85 Mo. 229; Rees v. St. Louis Co., 179 Mo. 1; Smith v. Citizens Co., 52 Mo.App. 36; Fanning v. St. Louis Co., 103 Mo.App. 151; Moore v. Lindell Co., 176 Mo. 528; Markowitz v. Railway, 186 Mo. 350; Conrad v. St. Louis Co., 89 Mo.App. 534; Hausman v. Hope, 20 Mo.App. 193; State ex rel. v. Goetz, 131 Mo. 675; Morrow v. Pullman Co., 98 Mo.App. 351; Hendley v. Globe Co., 106 Mo.App. 20; Gee v. Van Natta Co., 105 Mo.App. 27; Lenix v. Railroad, 76 Mo. 86; Holmes v. Leadbetter, 95 Mo.App. 419. (3) This is not a case for the application of the humanitarian or last chance doctrine. Holland v. Railway, 210 Mo. 351; Harlan v. Railway, 64 Mo. 480; Ross v. Railway, 125 Mo. 614.
W. F. Maher for respondent.
(1) The court properly overruled appellant's instruction in the nature of demurrer offered at the close of respondent's testimony and again at the close of all the testimony. The case was clearly one for the jury. Campbell v. Railroad, 175 Mo. 161; Buren v. Trans. Co., 104 Mo.App. 224; Reed v. Railroad, 107 Mo.App. 238; Meng v. Railroad, 108 Mo.App. 553; Montgomery v. Railroad, 181 Mo. 508; Rascher v. Railroad, 30 Am. St. Rep. 447, 90 Mich. 413; Tethrow v. Railroad, 98 Mo. 74; Engleman v. Street Railroad, 133 Mo.App. 514; Fledderman v. Transit Co., 134 Mo.App. 199; Donahue v. Railroad, 91 Mo. 364; King v. Railroad, 127 S.W. 400. (2) The question whether a traveler on a street car track has exercised ordinary care for his own safety is a question for the jury. Storage Co. v. Transit Co., 120 Mo.App. 415; Biscuit Co. v. Transit Co., 108 Mo.App. 302; Zander v. Transit Co., 206 Mo. 445; Peterson v. Transit Co., 199 Mo. 340; Winn v. Railroad, 121 Mo.App. 628; Conrad v. Railroad, 89 Mo.App. 398; Mayes v. Railroad, 121 Mo.App. 619; Rapp v. Transit Co., 190 Mo. 158. (3) Where there is a conflict in the testimony as to a material point in issue, the court properly leaves the matter to the jury. Meily v. Railroad, 215 Mo. 567; McGee v. Railroad, 214 Mo. 530; Porter v. Stockyards Co., 213 Mo. 372; Burnes v. Moore, 113 Mo.App. 6. (4) Appellant was guilty of violating the ordinance requiring a headlight on the front of his car and such violation of the ordinance was negligence per se. Johnson v. Railway, 203 Mo. 81; Holland v. Railway, 210 Mo. 338; Luna v. Railway, 216 Mo. 563; Jackson v. Railroad, 157 Mo. 621. (5) Respondent had the right to presume that appellant would observe the ordinance requiring headlights on the front end of its cars. Hoerr Baking Co. v. Railway, 127 Mo.App. 190; Powers v. Transit Co., 202 Mo. 267.
Joplin is a city of the third class, and defendant operates a double track line of electric street railway on Fourth street in said city. On the night of June 11, 1909, plaintiff, while driving east on Fourth street in said city with a one-horse ice cream wagon, was run into by a car of defendant, and he, the horse and wagon all injured. This action was to recover damages for that injury. There was a trial by jury, verdict for plaintiff for one thousand dollars and defendant has appealed.
The evidence on the part of plaintiff shows that the night on which the accident occurred was a dark night; that he had been out to the park with ice cream to sell and was returning to the city about ten or ten-thirty at night; that his wagon was heavily loaded and he was driving upon the north track of the defendant, going east, and that he saw a car coming from the east and pulled his wagon over on the south track and traveled thereon some two hundred feet until the car had passed, and then undertook to pull back upon the north track, but before getting off the south track the east bound car of the defendant running on the south track ran into his wagon, threw him down and out of the wagon, and caused his horse to run away. The horse ran over an embankment, the wagon was badly smashed up and the horse was injured; that he was injured himself and lost three months of time; that he was earning at that time from twenty-five to thirty dollars per week; that he became obligated to pay a doctor's bill of twenty dollars, and for medicine $ 4.75; that he suffered great bodily pain; that the wagon was badly demolished, and that before the accident the wagon was worth two hundred dollars, and afterwards was worth only about forty dollars; that the horse prior to the accident was worth one hundred and twenty-five dollars, and afterwards twenty-five or thirty dollars; that before turning upon the south track he looked for a car upon that track and could see none approaching, and that his companion Smith, who was with him in the wagon, kept a constant lookout for the cars while he was driving on the south track and could see none; that the car which ran into and injured him had no light upon the front. Plaintiff introduced an ordinance of the city of Joplin which requires the cars to be provided with lights at each end thereof after sundown, and to be so placed that they could be readily seen for a distance of at least three blocks. Testimony on behalf of defendant tended to show that there was a light on the front of the car. Defendant introduced a city ordinance which provides that the car should be entitled to the tracks and made it the duty of the drivers of vehicles to look out for the approach of cars when attempting to cross the tracks.
The court instructed the jury that if they believed from the evidence that defendant's said servants in charge of said car negligently ran said car after sunset without a proper light thereon, so placed as to be readily seen for a distance of three blocks from said car as provided by the ordinance read in evidence; and if the jury further find from the evidence that the failure to have such light on said car was the cause of the collision and the injury to plaintiff and the damage to his property, and that plaintiff was in the exercise of due care for his safety and the safety of his property, then, they should find for the plaintiff.
It is contended here by the appellant that this judgment should be reversed for the reason that the evidence shows the plaintiff to have been guilty of contributory negligence. There are no difficult legal questions involved in this case. It is familiar law that it is the duty of one about to enter upon a track of either a street car or steam road to use his senses of sight and hearing to ascertain whether or not there will be danger in going upon the track. [Reno v. St. Louis & Sub. Ry. Co., 180 Mo. 469, 79 S.W. 464; Green v. Missouri Pacific Railway Co., 191 Mo. 131, 90 S.W. 805.]
It is also clear that if the evidence clearly shows that there is but one conclusion that can be reached from the testimony and that is that the plaintiff's own negligence was the cause of the injury, then it is the duty of the court to so declare and to take the case from the jury; but unless the evidence is sufficiently clear that only one conclusion could be reached from it, then the question whether or not, under the circumstances, the plaintiff was guilty of contributory negligence, is a question for the jury, and in this case the plaintiff had the right to presume that defendant would have its cars...
To continue reading
Request your trial