Oates v. Metropolitan Street Railway Company

• Citation: 68 S.W. 906,168 Mo. 535
• Parties: OATES v. METROPOLITAN STREET RAILWAY COMPANY, Appellant
• Decision Date: 21 May 1902
• Court: United States State Supreme Court of Missouri

68 S.W. 906

168 Mo. 535

OATES v. METROPOLITAN STREET RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

May 21, 1902

Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.

Affirmed.

John H Lucas and Frank Hagerman for appellant.

(1) If upon the testimony, the plaintiff was not entitled to recover, no error at the trial could justify a new trial. Homuth v. Railroad, 129 Mo. 642; Vogg v Railroad, 138 Mo. 181; Bartley v. Railroad, 148 Mo. 142. (2) Plaintiff wholly failed to make a case. He was required to show by proof that he was in a position of danger long enough for the defendant's gripman to have known thereof and avoided the injury. Telle v. Railroad, 50 Kan. 455; s. c., 31 P. 1079. There was no testimony of the distance within which a train could be stopped, and neither the court nor the jury could determine the same without the aid of expert testimony. Gourley v. Railroad, 35 Mo.App. 92; Eckert v. Railroad, 13 Mo.App. 352; Mammerberg v. Railroad, 62 Mo.App. 563; Maher v. Railroad, 64 Mo. 276; Grinnel v. Railroad, 73 Iowa 93; s. c., 34 N.W. 758. The ringing of the bell was no evidence of negligence. Booth on Street Railways, sec. 298; Steiner v. Philadelphia Traction Co., 134 Pa. St. 199; s. c., 19 A. 491; Molyneax v. Railroad, 81 Mo.App. 29; Walters v. Railroad, 104 Wis. 251; s. c., 80 N.W. 453. If plaintiff's injuries might be attributable to several causes, for one of which defendant is not responsible, plaintiff was bound to prove, as he did not do, specifically a cause for which there is responsibility. Railroad v. Poole's Admr. (Va.), 40 S.E. 629; Searles v. Railroad, 101 N.Y. 661; s. c., 5 N.E. 67; Railroad v. Sparrow's Admr., 98 Va. 641; s. c., 37 N.E. 306. Plaintiff's claim as made in his petition was in fact without any support by his own proofs, and was affirmatively disproven by defendant. (3) There was no error in giving instructions 3, 5 and 7, because of which a new trial was granted. These instructions express the law, and are supported by precedents. Bartley v. Railroad, 148 Mo. 137; Weller v. Railroad (Mo.), 64 S.W. 145; Pryor v. Railroad, 85 Mo.App. 378.

Elliott & Burnham and Wash Adams for respondent.

(1) The violent ringing of the gong close to the horse when it was plain to be seen he was already frightened at the car, was actionable negligence. Lightcap v. Phil. Trac. Co., 60 F. 212; Ellis v. Railroad, 160 Mass. 341; McDonald v. Railroad, 74 F. 106; Benjamin v. Railroad, 160 Mass. 3; Galesburg Co. v. Manville, 61 Ill.App. 490. (2) In order to defeat a recovery of damages arising from defendant's negligence, the plaintiff's contributory negligence must have been the proximate cause of the injury. Wharton on Negligence (2 Ed.), sec. 303, p. 214, and sec. 323; Bailey's Master's Liability for Injury to Servant (1 Ed.), p. 414; Webb's Pollock on Torts, p. 573; Beach Con. Neg. (2 Ed.), sec. 24; Whalen v. Railroad, 60 Mo. 328; Pinnel v. Railroad, 49 Mo.App. 170; Walsh v. Trans. Co., 52 Mo. 436; Flynn v. Railroad, 40 Cal. 14; Orleans v. Perry, 24 Neb. 831; Hoepper v. Southern Hotel Co., 142 Mo. 388; Kennayde v. Railroad, 45 Mo. 255. (3) An instruction authorizing the jury to defeat the plaintiff's recovery, if his negligence merely contributed (however remotely) to the injury, is erroneous. Whalen v. Railroad, supra. (4) An instruction asserting that defendant's negligence must have been the direct cause of the injury, while plaintiff's negligence prevents recovery if it "but contributes" thereto, is erroneous, since no such difference or distinction exists. See authorities cited under point 2. (5) A verdict obtained for a defendant by means of illegal and erroneous instructions, is entitled to no weight in an appellate court, because the losing party has a right to a trial under the forms of law. In such case the appellate court can not rightfully give weight to the verdict. The utmost it can lawfully do is to decide as matter of law whether plaintiff's petition or evidence lacks an essential element of recovery or whether plaintiff, under the undisputed facts, was guilty of contributory negligence barring a recovery. In other words, the appellate court can only rightfully interfere where the jury had no office or function to perform. Haven v. Railroad, 155 Mo. 216; Homuth v. Railroad, 129 Mo. 642. (6) The order granting a new trial is presumptively correct. Where a trial court has granted a new trial because of erroneous instructions the appellate court should not interefere unless the lower court has clearly abused its discretion. If the instructions be erroneous, it is the duty of the appellate court to affirm the order granting a new trial. Hoepper v. Southern Hotel Co., 142 Mo. 390; Haven v. Railroad, supra.

OPINION

MARSHALL, J.

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 a new trial upon its error in giving instructions asked by the defendant. From that order the defendant appealed.

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 agent "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 thirty or forty 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 ten or twelve miles an hour, and it stopped seventy-five to one hundred feet from the horse, the train running about twenty-five feet towards the horse before it turned.

"(b) Green Allen was the 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 fifty to seventy-five 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 on to 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,...