McDonald v. United Railways Company of St. Louis

• Decision Date: 24 June 1922
• Citation: 245 S.W. 559,211 Mo.App. 149
• Parties: FRANKLIN P. McDONALD, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant
• Court: Missouri Court of Appeals

245 S.W. 559

211 Mo.App. 149

FRANKLIN P. McDONALD, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant

Court of Appeals of Missouri, St. Louis

June 24, 1922

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

AFFIRMED.

Judgment affirmed.

Charles W. Bates, T. E. Francis and Vance J. Higgs for appellant.

(1) The court erred in refusing to give the jury the instruction to find for defendant, requested by defendant at the close of plaintiff's case and at the close of the whole case, for the reason that plaintiff was not entitled to recover under any theory of negligence counted on in his petition. (a) Plaintiff was not entitled to recover under the Last Chance Doctrine. Burge v. Railroad, 244 Mo. 76; Quinley v. Springfield Traction Co., 165 S.W. 346; Fleming v. Railroad, 263 Mo. 180; Keele v. Railroad, 258 Mo. 62; Paul v. Railroad, 152 Mo.App. 577; Zurfluh v. Peoples Railway Co., 46 Mo.App. 636; Baecker v. Railroad, 240 Mo. 507; Hamilton v Railroad, 250 Mo. 714; McGee v. Railroad, 214 Mo. 530; Roenfeldt v. Railroad, 180 Mo. 554; (b) Plaintiff was not entitled to recover under the Vigilant Watch Ordinance. Gubernick v. United Rys. Co., 217 S.W 33. (c) 1. Plaintiff was not entitled to recover under the specification of negligence charging plaintiff with operating the car which collided with plaintiff in excess of fifteen miles an hour. Alexander v. Railways Co., 233 S.W. 49; King v. Wabash Ry. Co., 211 Mo. 13; Burton v. Pryor, 198 S.W. 1121; Battles v. Railroad, 178 Mo.App. 615; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131; Laun v. Railroad, 216 Mo. 563; Moore v. Railway, 176 Mo. 544; Burge v. Railway, 244 Mo. 76; Jackson v. Railway, 157 Mo. 645; Weller v. Railroad, 120 Mo. 635. 2. The evidence of plaintiff, tending to show that the car was operated at a speed of thirty-five miles an hour, did not warrant a recovery by plaintiff, for the reason that this dereliction was not the proximate cause of the collision, the proximate cause of said collision being the act of plaintiff in driving said dray wagon on the track, without looking, when he knew a car was approaching on said track at a speed of thirty-five miles an hour. Moore v. Railway Co., 176 Mo. 544; Battles v. Railroad, 178 Mo.App. 614; Schmidt v. Transit Co., 140 Mo.App. 182; King v. Railroad, 211 Mo. 1; Warner v. Railroad, 178 Mo. 125; Kelley v. Railroad, 75 Mo. 138. Negligence not proximately causing the injury compained of is not actionable. State ex rel. v. Ellison, 176 S.W. 11; Jackson v. Butler, 249 Mo. 342. (d) The contributory negligence of plaintiff bars a recovery by plaintiff under every theory of primary negligence. State ex rel. v. Reynolds, 233 S.W. 219; Evans v. Illinois Central Railway Co., 233 S.W. 397; Alexander v. Railroad, 233 S.W. (Mo. Sup.), 44; Burge v. Railroad, 244 Mo. 75. Gubernick v. Railroad, 217 S.W. 33; McCreery v. Railroad, 221 Mo. 18; Owens v. Railroad, 188 Mo.App. 450; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Kelsay v. Railroad, 129 Mo. 362; Costello v. Railroad, 213 S.W. 179; Voelker Products Co. v. Railroad, 185 Mo.App. 310. (2) Instruction number eight is erroneous in that it directed the jury to consider all the facts and circumstances in evidence in arriving at its verdict. Boyd v. Transit Co., 108 Mo.App. 303; Kohr v. Railway Co., 92 S.W. 1145; Allen v. Transit Co., 183 Mo. 411. (3) The court erred in refusing to give the jury instruction D, requested by defendant, as plaintiff was not entitled to recover under the Last Chance Doctrine. Alexander v. Railroad, 233 S.W. (Mo. Sup.) 44; Quinley v. Springfield Traction Co., 165 S.W. 346; Burge v. Railroad, 244 Mo. 76; Fleming v. Railroad, 263 Mo. 180; Keele v. Railroad, 258 Mo. 62; Paul v. Railroad, 152 Mo.App. 577; Zurfluh v. Peoples Railway Co., 46 Mo.App. 636; Baecker v. Railroad, 240 Mo. 507; Hamilton v. Railroad, 250 Mo. 714; McGee v. Railroad, 214 Mo. 530; Roenfeldt v. Railroad, 180 Mo. 554. Where plaintiff is not entitled to recover under an assignment of negligence pleaded in the petition, the failure of the court to give an instruction requested by defendant, withdrawing such assignment, is reversible error. Roseman v. United Rys. Co., 194 S.W. 1088; Allen v. Lumber Co., 171 Mo.App. 492; Chicago etc. Ry. Co. v. Kroloff, 217 F. 525. (4) The court erred in refusing to give the jury instruction C, requested by defendant, withdrawing the assignment of negligence based upon a violation of the vigilant watch ordinance, for the reason that plaintiff's contributory negligence barred a recovery under this theory. State ex rel. v. Reynolds, 233 S.W. 219; Evans v. Illinois Central Railway Co., 233 S.W. 397; Alexander v. Railroad, 233 S.W. (Mo. Sup.) 44; Burge v. Railroad, 244 Mo. 75; Gubernick v. Railroad, 217 S.W. 33; McCreery v. Railroad, 221 Mo. 18; Owens v. Railroad, 188 Mo.App. 450; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Kelsay v. Railroad, 129 Mo. 362; Costello v. Railroad, 213 S.W. 179, 180; Voelker Products Co. v. Railroad, 185 Mo.App. 310; Tannehill v. Railroad, 279 Mo. 158; Boring v. Railroad, 194 Mo. 541; Where plaintiff is not entitled to recover under an assignment of negligence pleaded, the failure of the court to give an instruction requested by defendant withdrawing such assignment is reversible error. Roseman v. United Rys. Co., 194 S.W. 1088; Allen v. Lumber Co., 171 Mo.App. 492; Chicago etc. Ry. Co. v. Kroloff, 217 F. 525. (5) The court erred in refusing to give the jury instructions A and B, requested by defendant, withdrawing assignments of negligence based on the common law and under an ordinance of the City of St. Louis. (a) Plaintiff, before going into the danger zone, saw the approach of the car and was cognizant of the fact that the same was being operated at a rate of speed far in excess of fifteen miles an hour. Alexander v. Railroad, 33 S.W. 49; King v. Wabash Ry. Co., 211 Mo. 13; Burton v. Pryor, 198 S.W. 1121; Battles v. Railroad, 178 Mo.App. 615; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131; Moore v. Railroad, 176 Mo. 544; Burge v. Railroad, 244 Mo. 76; Jackson v. Railway, 157 Mo. 645; Weller v. Railroad, 120 Mo. 635. (b) The speed at which the car was operated was not the proximate cause of the collision. Moore v. Railway Co., 176 Mo. 544; Battles v. Railroad, 178 Mo.App. 614; Schmidt v. Transit Co., 140 Mo.App. 182; King v. Railroad 211 Mo. 1; Warner v. Railroad, 178 Mo. 125; Kelley v. Railroad, 75 Mo. 138. Negligence not proximately causing the injury complained of is not actionable. State ex rel. v. Ellison, 176 S.W. 11; Jackson v. Butler, 249 Mo. 342. (6) The court erred in refusing to give the jury instruction H, requested by defendant, which said instruction directed the jury that if it found from the evidence that plaintiff saw that a street car was approaching, and knew the danger of being struck thereby, and knowingly attempted to drive his team across the street car tracks in question in such close proximity to a moving street car as to be struck before he could get across or off of said tracks, then the verdict must be for the defendant. Kinlen v. Railroad, 216 Mo. 145; Pope v. Railroad, 242 Mo. 232; Knapp v. Dunham, 195 S.W. 1062.

Bass & Bass and I. Joel Wilson for respondent.

(1) The court did not err in overruling the demurrer offered by the defendant at the close of plaintiff's case. (a) In passing on a demurrer to plaintiff's evidence the court must consider the evidence introduced by plaintiff as true and make every finding and deduction in his favor which the jury would have been warranted in making. Williams v Kansas City Southern Railway Co., 257 Mo. 87; Strauchon v. Metropolitan Street Railway Co., 232 Mo. 587; Irvin v. United Railways Co., 196 Mo.App. 666; Clark v. St. Louis & Suburban Railway Co., 234 Mo. 396. (b) "It is a trite doctrine that in passing on a demurrer to the evidence the evidence must be viewed in the light most favorable to the plaintiff, giving him the benefit of every inference favorable to him which may be fairly and reasonably drawn therefrom. If there is room for reasonable men to differ with respect to the evidence, the case is one for the jury." Yost v. Atlas Portland Cement Co., 191 Mo.App. 422; Powers v. Transit Co., 202 Mo. 267; Morgan v. Orongo Circle Mining Co., 160 Mo.App. 99; Riley v. O'Kelly, 250 Mo. 647; Boeckmann v. Valier & Spies Milling Co., 199 S.W. 457; Cowan v. Young, 220 S.W. 869. (d) Plaintiff was entitled to recover under the Last Chance Doctrine. (e) The distance the car ran and was actually stopped after it struck the wagon, as shown by the testimony, is evidence tending to show in what distance it could have been stopped under the circumstances of this case, so as to have averted the collision. Beir v. St. Louis Transit Co., 197 Mo. 215; Ellis v. Metropolitan Street Railway, 234 Mo. 657; Petrie v. Metropolitan St. Ry. Co., 177 Mo.App. 359. (f) "The law is that if a motorman or engineer drives his car at such speed that he could not stop it if he came in sight of one who might be crossing over the track, he cannot excuse himself by showing his inability to stop by the utmost effort after he did see him. The reason being that his being unable to stop came about from his inexcusable negligence before he saw him. Williams v. City Elevated Railway Co., 149 Mo.App. 489; Koenig v. Union Depot Ry. Co., 173 Mo. 698; Klockenbring v. Ry. Co., 172 Mo. 678; Moore v. St. Louis Transit Co., 194 Mo. 1; Epstein v. Ry. Co., 197 Mo. 720; Murrell v. Ry. Co., 105 Mo.App. 88; Abbott v. Ry. Co., 121 Mo.App. 582. (g) Plaintiff was entitled to recover under the vigilant watch ordinance and contributory negligence is not...