Nagel v. St. Louis Transit Company
| Decision Date | 16 February 1904 |
| Citation | 79 S.W. 502,104 Mo.App. 438 |
| Parties | NAGEL, Respondent, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.
Action for personal injuries sustained by plaintiff while driving a single-horse milk wagon southwardly on Broadway, from rear end collision with south-bound car of defendant about one hundred and fifty feet north of Prairie avenue, in the city of St. Louis. The evidence revealed that about a quarter before three o'clock Sunday morning, June 8, 1902 plaintiff drove from Talcott avenue, an intersecting street upon Broadway and proceeded southwardly on the western track of defendant's double-track electric railway; on the western side of the street beyond the tracks, the roadway between Prairie avenue and Desoto avenue was obstructed by sewer excavations indicated by red lights. The morning was cloudy and misting, the rails damp, and day just breaking the street lamps being still lighted about the scene of the casualty. He had driven about a block and a half when the wagon was struck by a so-called owl or night car from behind, the horse killed, the vehicle wrecked and plaintiff injured. The assignments of negligence made in the petition were that defendant's servant, the motorman, in charge of the car, saw, or by the exercise of ordinary care could have seen, plaintiff and his wagon in a position of peril, and by exercise of ordinary care could have stopped the car or sufficiently reduced the speed in time to avoid injuring plaintiff, and and that the negligent failure of such motorman to use ordinary care to discover plaintiff and his wagon, in a position of peril and after he saw him in such position, or by the exercise of ordinary care would have seen him, his negligent failure to use ordinary care to slacken the speed of or stop the car, and negligent failure to discover plaintiff and sufficiently slacken the speed of such car and stop it, directly contributed to the injury to plaintiff; a further charge of negligence was made based on the so-called "vigilant watch" ordinance of the city of St. Louis, a violation of which was alleged. For its defense, defendant pleaded a general denial with accusation of contributory negligence on plaintiff's part in going upon or near the track in front of a moving car, at a time and place, when and where he might have seen and heard the approaching car, but failed to look or listen for such car, and was injured in consequence. The testimony was in conflict, whether the colliding car had a headlight and whether the gong thereon was sounded until the accident was imminent; whether plaintiff had been continuously in the track, or turned into the path of the car and thereby was struck, was also the subject of opposing testimony of various witnesses. It was shown, however, by testimony offered on behalf of defendant that the car was moving at a rapid rate of speed and ran about eighty feet after the impact with plaintiff's wagon.
Judgment affirmed.
Boyle, Priest & Lehmann and Kiskaddon & Matthews for appellant.
(1) The ordinance when offered was competent, and could not be objected to by defendant, for the reason that its acceptance was pleaded. But plaintiff failed to follow the proof of the ordinance with evidence of its acceptance. Therefore, instructions predicated on the ordinance were erroneous. Holwerson v. Railroad, 157 Mo. 216; Day v. Railroad, 81 Mo.App. 471; Anderson v. Railroad, 161 Mo. 411; Sanders v. Railroad, 147 Mo. 411; Schmidt v. Railroad, 163 Mo. 645. (2) The obligation of ordinary care on the defendant's part in such case only begins when he has knowledge of plaintiff's dangerous position, or such notice of it as would put a person of ordinary prudence on his guard, or he may be negligent if he willfully or wantonly conducts himself in such a way as to demonstrate a reckless carelessness of the persons of those who may be in a dangerous position. Kellny v. Railroad, 101 Mo. 67; Strauss v. Railroad, 75 Mo. 185; Hunt v. Railroad, 94 Mo. 255; Morgan v. Railroad, 159 Mo.; Klockenbrink v. Railroad, 81 Mo.App. 351; 3 Elliott on Railroads, sec. 1175; Beach on Cont. Neg. (3 Ed.), secs. 54, 55, 62, 64; Shear. & Red. on Neg. (5 Ed.), sec. 64. (3) The defendant read in evidence the deposition of John Huggins. The plaintiff introduced a witness, Ida Helker, who testified that at some other time and place Huggins had made statements in relation to the collision in which plaintiff claimed he was injured, directly contradictory of the statements in the deposition. To this defendant objected on the ground that plaintiff had not laid the proper foundation for the introduction of such evidence. This objection the court overruled, defendant excepting. This ruling was erroneous. Gregory v. Cheatham, 36 Mo. 155; Spohn v. Railroad, 116 Mo. 617; State v. Grant, 79 Mo. 113; McDermott v. Railroad, 87 Mo. 285. (4) The two instructions given by the court of its own motion are inconsistent with the instruction No. 4 given by the court at the instance of plaintiff. The two instructions given by the court instruct the jury that if plaintiff was guilty of contributory negligence he can in no event recover, while instruction No. 4 instructs the jury that if he was guilty of contributory negligence he may under some circumstances recover. Such instructions are contradictory, repugnant and inconsistent, and, for that reason, erroneous. Price v. Railroad, 77 Mo. 508; Stone v. Hunt, 94 Mo. 475; Schneer v. Lemp, 17 Mo. 142; Stevenson v. Hancock, 72 Mo. 612; Jersey Farm Dairy Co. v. Railroad, 103 Mo.App. 90.
Wm. L. Bohnenkamp for respondent.
(1) The ordinance in question under this point of appellant's brief was competent evidence, even though its acceptance by appellant was not proven. That the ordinance may be offered in evidence without proving its acceptance by defendant, is declared to be the law by both this court and the Supreme Court of this State in the following recent cases: Gebhardt v. Railroad, 97 Mo.App. 373; Jackson v. Railroad, 157 Mo. 621; Riska v. Railroad (not yet reported); Wendler v. Peoples House Furnishing Co., 165 Mo. 527. (2) The "vigilant watch ordinance" requires no greater care than ordinary care at common law, and therefore, and for the other reasons given, appellant's objection to the giving of this instruction is altogether without merit. Conrad Grocer Co. v. Railroad, 89 Mo.App. 391. (3) The court did not err in permitting the witness, Ida Helker, to testify that the absent witness, Huggins, had made statements contradictory to those set out in appellant's affidavit for a continuance, because section 687, Revised Statutes 1899, expressly says that the opposite party may disprove the statements of such absent witness, or prove contradictory statements made by such absent witness in relation to the matter in issue and on trial. That the ruling of the trial court in this matter is not erroneous is supported by two recent decisions by this court: Freeman v. Railroad, 95 Mo.App. 95; Ely Walker Dry Goods Co. v. Mansur, 87 Mo.App. 105; State v. Miller, 67 Mo. 604; State v. Mann, 83 Mo. 589. (4) Instruction No. 4, given at the request of plaintiff, declares the law correctly, and it is so well settled in this State that it requires no citations; then, if we concede for the sake of argument that the other two instructions are inconsistent with No. 4, and therefore erroneous, appellant can not now complain of this error, because the two instructions complained of were given at the request of the defendant, and the error, if error, was invited by defendant. This principle of law is well settled. Christian v. Ins. Co., 143 Mo. 460; Baker v. Railroad, 122 Mo. 533.
REYBURN, J. (after stating the facts as above.)
1. The court is confronted at the outset with a strenuous renewal of a discussion, which was supposed to have received its obituary both from the Supreme Court and from this tribunal in compliance with its constitutional obligation to the superior court, namely, that before the vigilant watch ordinance of the city of St. Louis could be properly admitted in evidence, proof of the allegation that defendant had contracted with the city to accept its provisions and abide by its terms must be introduced. The point sought to be revived is not properly preserved for review in this court, for the ordinance was permitted to be offered in evidence without objection thereto, but regarding the contention, that if objection had been duly made and exception to its admission properly saved, the objection would have been unavailing: the Supreme Court, in the late case of Riska v. Union Depot Railroad Company, has reiterated the ruling contained in the final preceding decisions, as well as approving the last opinion of this court to the same effect, and being not yet reported in print, the text may be quoted:
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