Patton v. Morrin-Powers Mercantile Co.
| Decision Date | 30 November 1910 |
| Citation | 132 S.W. 684,231 Mo. 298 |
| Parties | HELEN M. PATTON v. MORRIN-POWERS MERCANTILE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Hermann Brumback, Judge.
Affirmed.
Stewart Taylor for appellant.
(1) Where plaintiff's own evidence shows such contributory negligence as to defeat his right of action, it is the duty of the trial court to so declare as a matter of law. Hudson v. Railroad, 101 Mo. 13; Corcoran v Railroad, 105 Mo. 399; Hudson v. Railroad, 123 Mo. 445; Sindlinger v. City of Kansas, 126 Mo. 315; Barton v. Railroad, 52 Mo. 258; Weber v Railroad, 100 Mo. 194; Powell v. Railroad, 76 Mo. 80; Wendall v. Railroad, 100 Mo.App. 562; Hogan v. Railroad, 150 Mo. 36; Roberts v Telephone Co., 166 Mo. 370; Cohn v. City of Kansas, 108 Mo. 393; Holwerson v. Railroad, 157 Mo. 216; Wheat v. St. Louis, 179 Mo. 572; Erickson v. Railroad, 171 Mo. 647; Evans v. Railroad, 178 Mo. 508; McGee v. Railroad, 214 Mo. 546; Meyer v. Railroad, 6 Mo.App. 27; Barker v. Savage, 45 N.Y. 191; Messenger v. Dennie, 137 Mass. 197; Yore v. Transfer Co., 147 Mo. 679; Woodson v. Railroad, 224 Mo. 685; Butts v. Railroad, 98 Mo. 272. "In that case the court does not weigh the plaintiff's evidence of defendant's negligence, and pronounce it insufficient, but it takes the plaintiff's evidence of his own negligence, at its face value, and passes judgment of nonsuit upon it." Schmidt v. Railroad, 149 Mo. 287; Sims v. Railroad, 116 Mo.App. 579. (2) There was no proof of the specific act of negligence charged. McGrath v. Railroad, 197 Mo. 105; Hafner v. Railroad, 197 Mo. 202; Boring v. Railroad, 194 Mo. 552; Roscoe v. Railroad, 202 Mo. 587. (3) No inference of defendant's negligence arises from the fact that there was a collision in which plaintiff was injured. Lee v. Jones, 181 Mo. 291; Yore v. Transfer Co., 147 Mo. 679. (4) There is no evidence that the plaintiff was or could have been seen in a position of peril in time by the exercise of ordinary care to have averted the injury. Prewitt v. Eddy, 115 Mo. 283; Rissler v. Railroad, 113 Mo.App. 126; Roenfeldt v. Railroad, 180 Mo. 554; Sites v. Knott, 197 Mo. 684; Lennon v. Railroad, 198 Mo. 514; Renov. Railroad, 180 Mo. l. c. 485; Ries v. Railroad, 179 Mo. 1; Yancey v. Railroad, 93 Mo. 433. (5) There is no plea nor proof that the defendant willfully and wantonly ran into the plaintiff. Guyer v. Railroad, 174 Mo. 344; Van Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Holwerson v. Railroad, 157 Mo. 216. (6) The fact, undisputed, that the horse stopped the instant plaintiff collided with his left shoulder, is proof conclusive that it could not have been going at high speed just before plaintiff took the last step. This fact overcomes any possible testimony as to negligent rate of speed. McCreery v. Railroad, 221 Mo. 18. It is well settled that courts will not stultify themselves by giving any heed to the testimony of witnesses, or the inferences deducible therefrom that are so opposed to all natural law and reasonable probability as to be manifestly false. Gurley v. Railroad, 104 Mo. 233; Dunphy v. Stock Yards, 118 Mo.App. 522; Demaet v. Storage Co., 121 Mo.App. 103; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 593; Weaver v. Railroad, 60 Mo.App. 207. (7) The plaintiff had no right to be "oblivious to her surroundings" while crossing the street, but should have been on the lookout for approaching vehicles. All she had to do was to use her senses and the accident would have been avoided. Her eyesight and hearing were not defective. Waddell v. Railroad, 113 Mo.App. 684; Wheat v. St. Louis, 179 Mo. 580; Schmidt v. Railroad, 191 Mo. 234; Kelsay v. Railroad, 129 Mo. 375; Barker v. Savage, 45 N.Y. 191; Groom v. Kavanagh, 97 Mo.App. 372; Payne v. Railroad, 136 Mo. 586.
Rush L. Fisette and Bird & Pope for respondent.
(1) Plaintiff did not, as a matter of law, have to look for the wagon of defendant, or, on her failure so to do, stand convicted of contributory negligence. Dahlstrom v. Railroad, 108 Mo. 525; Baker v. Railroad, 147 Mo. 140; Cook v. Railroad, 19 Mo.App. 329; Hennessey v. Taylor, 189 Mass. 583; Schramm v. Parker, 72 N. J. L. 243; McCrohan v. Davidson, 187 Mass. 466. (2) The plaintiff can recover if defendant, by the exercise of ordinary care, could have avoided the injury, or if the defendant was so reckless that by the exercise of ordinary care it could not have avoided the injury. Dunkman v. Railroad, 95 Mo. 244; Hogan v. Railroad, 150 Mo. 54; Klockenbrink v. Railroad, 172 Mo. 687. (3) Expert evidence is not admissible as to the time or space in which the horse and wagon ought to have been stopped. Express Co. v. Kinnare, 168 Ill. 643; O'Neill v. Railroad, 129 N.Y. 125. If, as stated by Mr. Justice Earl in this New York case, jurors are generally well acquainted with such common things as trucks and horses, and the power, action and capacity of horses, then in such a case the jurors were capable of forming an opinion on the matter from all the facts, and expert evidence was not admissible, in this State, under the following authorities: Koenig v. Railroad, 173 Mo. 698; Rosenkranz v. Railroad, 109 Mo. 9; Gavish v. Railroad, 49 Mo. 274; Meng v. Railroad, 108 Mo.App. 553; Naughton v. Stagg, 4 Mo.App. 271; Gutridge v. Railroad, 94 Mo. 568; Rosenheim v. Ins. Co., 33 Mo. 230; Limberg v. L. Co., 127 Cal. 598. And see cases under division 4. (4) Expert evidence, even if proper, was unnecessary in this case, for the jury, from the facts, were capable of forming a correct conclusion. Holden v. Railroad, 177 Mo. 470; Shanks v. Railroad, 101 Mo.App. 702; Barrie v. Railroad, 102 Mo.App. 87; Jersey Dairy v. Railroad, 103 Mo.App. 90; Linder v. Railroad, 103 Mo.App. 574; Moritz v. Railroad, 102 Mo.App. 657; Kimble v. Railroad, 108 Mo.App. 78. (5) Contributory negligence does not bar a recovery where the conduct of the defendant is reckless or wanton, as in this case. Kellny v. Railroad, 101 Mo. 67; Morgan v. Railroad, 159 Mo. 262; Mayes v. Railroad, 121 Mo.App. 614; Cole v. Railroad, 121 Mo.App. 605; 1 Thomp. on Negl., sec. 206; Thompson v. Livery Co., 214 Mo. 487.
The plaintiff, a lady, seventy-three years of age, was knocked down and trampled upon by a horse, driven by an employee of defendant, on one of the public streets of Kansas City. Her injuries were quite serious, and she instituted this suit to recover the sum of $ 10,000 damages of defendant on account of those injuries, alleged to have been inflicted through the alleged negligence of said employee.
The defendant was engaged in the mercantile business in said city, and said employee was at the time of the injury engaged in delivering goods for the defendant.
At the close of plaintiff's evidence, the court announced that it would give an instruction in the nature of a demurrer to the evidence, telling the jury that plaintiff was not entitled to a recovery, to which action of the court plaintiff duly objected and excepted; and, thereupon, she took a nonsuit with leave to move to set aside the same. In due time counsel for plaintiff filed a motion to set aside the nonsuit, and asking for a new trial. After due consideration the court, without assigning any reason therefor, sustained said motion; and to the action of the court in so ordering, the defendant properly excepted, and in due time appealed therefrom to this court.
The facts of the case as disclosed by the record are few and practically undisputed. Plaintiff's evidence tended to prove that on October 11, 1905, in the afternoon, she, a woman of seventy-three years of age and of unusual vigor and good health for one of her years, left her home in Rosedale, Kansas, on a street car, for the purpose of visiting her daughter, who resided near the south end of the Roanoke car line, in Westport. She took the Rosedale car in Rosedale, intending to transfer to a Roanoke car, south-bound, at Summit street, Kansas City, Missouri. She left the Rosedale car about 4:45 p. m. on Southwest boulevard, about seventy-five feet west of Summit street, the point where the car stopped for passengers to alight, and was crossing on said boulevard in a northerly direction for the purpose of taking a Roanoke car at the northwest corner of said boulevard and street. She had crossed north over both car tracks and was a few feet north of the north rail of the north track when knocked down, run over and injured by defendant's horse and wagon. The plaintiff was perfectly familiar with the situation, having made this same trip numerous times, and almost every week. The place of the injury was at a regular transfer point for street car passengers. At the time of the catastrophe there was a heavy traffic on Southwest boulevard, also a heavy transfer of passengers at the intersection of Summit street and said boulevard -- the cars of three lines were passing over the tracks of the Summit street line.
While the court assigned no ground for sustaining the demurrer to the evidence, however counsel for defendant in their briefs contend that the court properly sustained the demurrer, or rather indicated that it would do so, for two reasons: First, because the evidence did not make a case for the jury; and, second, because the evidence conclusively showed that plaintiff was guilty of such contributory negligence as should bar a recovery. It, therefore, becomes necessary for us to briefly state the evidence introduced bearing upon those questions.
John Pryor testified that what first attracted his attention was the driver going across the street car tracks in Summit street; that he went across at a pretty good gait that he saw the horse before it struck the plaintiff; that he saw the horse as it "ran upon the old lady;" "that...
To continue reading
Request your trial