Oates v. Metropolitan St. Ry. Co.

• Decision Date: 21 May 1902
• Citation: 68 S.W. 906,168 Mo. 535
• Parties: OATES v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

68 S.W. 906

168 Mo. 535

OATES v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 21, 1902.

STREET RAILROADS—FRIGHTENING HORSE— NEGLIGENCE IN RINGING GONG—CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — EVIDENCE.

1. Where a runaway horse enters a street on which a street car line is operated, and the driver and horse both know of the approach of a car, it is useless and negligent for the motorman to violently ring his bell, and his act cannot be justified as being to assist the driver in keeping the horse from the car.

2. The question whether a street car motorman used ordinary care in the management of his car when a horse in front of the car became frightened at it is for the jury.

3. Negligence of a street car motorman in violently ringing his bell as his car approached a frightened horse, thus causing the horse to run away, was not justified, though the driver had knowledge, when he drove on the street, that the horse was liable to become frightened at the car and run away.

4. The contributory negligence of a person on the street, injured through negligence in the management of a street car, does not preclude a recovery unless it enters directly into and forms a part of the efficient cause of the accident.

5. In an action against a street railroad for frightening a horse, evidence that the horse was frightened a week before by a dummy engine does not authorize an instruction that plaintiff cannot recover if the real cause of the accident was the disposition of the horse to frighten at cars.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by J. A. Oates against the Metropolitan Street Railway Company. Judgment was rendered for defendant, and from an order granting a new trial defendant appeals. Affirmed.

The plaintiff sues the defendant for personal injuries caused by the alleged negligence of the defendant's servant in violently and needlessly ringing the gong on its cable car, thereby frightening the plaintiff's horse, causing him to run away and throw plaintiff out of his buggy. There was a verdict for the defendant. The motion for new trial contained seven grounds,—among them, that the verdict was against the weight of the evidence; but the court based its action in granting the new trial upon its error in giving instructions asked by the defendant. From that order the defendant appealed.

John H. Lucas and Frank Hagerman, for appellant. Elliott & Burnham and Wash Adams, for respondent.

MARSHALL, J.

The negligence set out in the petition is that while the plaintiff was driving east on Twelfth street, between Bales and Askew avenues, in Kansas City, about 7:15 a. m., on July 12, 1897, his horse became frightened at the defendant's approaching car, and backed upon the track, thereby placing plaintiff in a position of imminent peril; that the agents of the defendant saw such position and peril of the plaintiff, and could have prevented the accident by the exercise of ordinary care, but that, instead of so doing, the defendant's agents "carelessly and negligently caused the gong or bell on the car to be violently and continuously rung and jangled as said train continued to approach plaintiff's horse," causing the horse to suddenly whirl around in front of the car, almost overturn the buggy, and to run away, and throw plaintiff out of the buggy and injure him. The answer is a general denial, and a plea that the plaintiff's injuries "were caused and directly contributed to by plaintiff's own fault and negligence." The evidence developed this state of facts: In consequence of his injuries, the plaintiff was rendered unconscious, and so remained several hours. Hence he says he does not remember very distinctly what took place before his horse became frightened at the car, and that he can only remember seeing the approaching car and hearing the ringing of the gong. He does not remember anything else connected with the accident. The plaintiff produced two witnesses,—J. B. Hall and Albert Kreuser. Hall occupied the second seat from the front on the grip car. His attention was attracted to the plaintiff and his horse by the ringing of the bell. At that time the car was within 30 or 40 feet of the plaintiff's horse. The horse was very much frightened. The horse commenced to back. The car slowed up, but continued to approach the horse, and all the while the gripman rang the gong "very violently." The plaintiff was unable to manage the horse. The gripman continued to ring the gong. The horse finally turned around in front of the car, ran away, and the plaintiff was thrown out and injured. Kreuser was seated in the first single seat on the north side of the grip car, and his testimony is substantially the same as Hall's. On the other hand, defendant's counsel makes the following summary of the defendant's showing: "Defendant's evidence consisted of the testimony of Harry L. Mitchell, conductor of the car, Green Allen, its gripman, S. H. Bales, R. N. Middleton, and Harry Hornbrook. (a) Harry L. Mitchell, conductor of the train, said that the horse was plunging and rearing on Bales avenue before it got to Twelfth street, and he could not tell then which way it was going. When it got to Twelfth street, plaintiff pulled first on one line and then on another, when the horse turned suddenly, running to the west for some distance, where plaintiff was thrown out. The bell was rung to warn plaintiff, whose horse was running away towards the east while the car was going west at its usual rate of 10 or 12 miles an hour, and it stopped 75 to 100 feet from the horse, the train running about 25 feet towards the horse before it turned. (b) Green Allen was gripman on the train, and he saw the horse plunging and rearing on Bales avenue. When it reached Twelfth street it turned east, and he rang the bell of the train to warn the driver, and shut down his appliances as soon as it appeared that the horse was coming towards him. The horse came within 50 to 75 feet of the car, when it turned and ran west. (c) S. H. Bales was sitting on his front porch at his home at Twelfth and Askew avenue, reading his paper; saw the horse running west down Bales avenue, but he neither noticed nor saw any car nor heard any ringing of the bell. (d) R. N. Middleton was at the engine house, and saw the horse running away, it looking to him as if `he was coming down from the north onto Twelfth street, or had just struck Twelfth street from Bales avenue.' He did not notice the horse turn east, nor see nor hear any car, nor any noise such as is complained of in the petition. (e) Harry Hornbrook lived on the south side of Twelfth street, between Bales and Indiana avenues. He was in the front room of the house. Saw the horse run by going west, but neither saw the train nor heard any noise therefrom." The instructions given for the defendant which the court afterwards held to be erroneous were as follows: "(3) The mere fact, if true, that the horse which plaintiff was driving frightened at the cable train, and plaintiff was thereby thrown from his vehicle and injured, gives him no right to sue defendant and recover damages. Before, in any event, plaintiff can recover, you must find from the greater weight of all the testimony in the case: First, that defendant was negligent in some particular respect submitted to your consideration; and, second, that the negligence so found was the direct cause of frightening the horse, so that it ran away and injured plaintiff. If you do not find both these facts to be true, then defendant is entitled to the verdict; or, if the plaintiff was negligent, and thereby contributed to his own injuries, then defendant is entitled to the verdict, and this is so even if you find that the defendant was also negligent. The act of negligence charged in the petition, and to which your attention must be confined in considering whether defendant was negligent, is this: The trainmen saw, or by the exercise of ordinary care would have seen, plaintiff in a dangerous position, and were negligent in permitting the train to approach plaintiff and causing the gong to be rung so as to frighten the horse and cause it to run away." "(5) But, even if you should find that the gripman did not exercise reasonable prudence, yet, if the act of the gripman was not the direct cause of the injury, then your verdict must be for defendant; or if the real cause of the accident was the disposition of the horse to frighten at cars, or because the horse was running away, and beyond plaintiff's control, before it got to Twelfth street, then your verdict will be for defendant." "(7) The difference between negligence on the part of defendant and on the part of the plaintiff is this: Defendant's negligence, if any, must be found by the jury to have been the direct cause of the injury, whereas plaintiff's negligence, if any, defeats a recovery if it but contributes to the injury; and this is so even though defendant was also negligent. If negligence of defendant and negligence on the part of plaintiff combine to cause the injury, then the plaintiff cannot recover." The error ascribed to instructions 3 and 7 is that it requires the jury to find that the defendant's negligence was...