Peterson v. United Railways Co.

• Citation: 192 S.W. 938,270 Mo. 67
• Parties: CHARLES C. PETERSON v. UNITED RAILWAYS COMPANY, Appellant
• Decision Date: 20 February 1917
• Court: United States State Supreme Court of Missouri

192 S.W. 938

270 Mo. 67

CHARLES C. PETERSON v. UNITED RAILWAYS COMPANY, Appellant

Supreme Court of Missouri, First Division

February 20, 1917

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Reversed and remanded.

Boyle & Priest and T. E. Francis for appellant.

(1) Plaintiff's instruction number 1 is erroneous, because it permitted a recovery by plaintiff if the jury found that the conductor failed to keep a vigilant watch, as required by the so-called "Vigilant Watch Ordinance" of St. Louis when, under the law, a recovery could be had only in the event the motorman failed to keep such lookout. Gebhardt v. Transit Co., 97 Mo.App. 373; Heinzle v Railroad, 182 Mo. 528. (2) Plaintiff's instruction number 1, which authorized the jury to find for plaintiff if they found that defendant's agents in charge of the car "failed to ring the bell or gong on said car or give other audible notice or warning of the approach of said car," is erroneous, for the reason plaintiff testified that he was fully cognizant of the approach of the car, and, therefore, the failure to ring the bell or gong or give him other warning of its approach was not the proximate cause of the collision and could not properly be made a predicate of a recovery. Murray v. Transit Co., 176 Mo. 183; Haller v. St. Louis, 176 Mo. 606; Hutchinson v. Railroad, 195 Mo. 546; Heintz v. Transit Co., 115 Mo.App. 667; Heinzle v. Railroad, 182 Mo. 525; Mockowik v. Railroad, 196 Mo. 550; Young v. Railroad, 227 Mo. 307.

Willis H. Clark for respondent.

(1) The total inadequacy of the purported abstract herein precludes a determination of the first of the two points attempted to be raised in the brief for appellant. Peterson v. United Railways, 183 Mo.App. 715. (2) The failure to give any signal of the approach and passage of the car, under the circumstances disclosed in evidence, was a factor of negligence on the part of defendant which plaintiff was entitled to have submitted to the jury for their decision as to the cause of the accident. McKinzie v. United Railways, 216 Mo. 1; Kinler v. Railway Co., 216 Mo. 145; Dahmer v. Railway Co., 136 Mo.App. 443; Bilhimer v. Railway Co., 137 Mo.App. 675; Batsch v. Railway Co., 143 Mo.App. 58; Parrish v. Railway Co., 140 Mo.App. 700; Williams v. Railway Co., 149 Mo.App. 489; Ellis v. Railway Co., 234 Mo. 657; Legg v. Railway Co., 154 Mo.App. 290; Smith v. Railway Co., 169 Mo.App. 610; Clover v. Railroad, 149 Mo.App. 413; Cytron v. Transit Co., 205 Mo. 692. (2) In the absence of a showing that specific objections were made to the instructions in the court below as to the particulars here complained of the judgment should be affirmed. Kirby v. Lower, 139 Mo.App. 677; Ilgenfritz v. Railroad, 155 S.W. 854.

OPINION

GRAVES, J.

This case reaches us from the St. Louis Court of Appeals upon due certification to the effect that the majority opinion therein conflicts with the cases of this court, and other appellate decisions. The case is therefore here for full review. The petition is thus summarized in the abstract of record:

"Plaintiff's petition alleged, in substance, that defendant is and was on May 15, 1910, a corporation engaged in the business of operating a street railway system in the city of St. Louis; that on said date plaintiff was a passenger in an automobile which became stalled on defendant's southwestward-bound track on Gravois Avenue in said city; that while said automobile was so stalled upon said track, one of defendant's cars, operated upon said track and in charge of a motorman and conductor, collided with said automobile, thereby inflicting certain injuries upon plaintiff, for which he prayed judgment in the sum of $ 25,000."

The assignments of negligence set forth in the petition are as follows:

"First: The employees and servants of defendant in charge of said car carelessly and negligently failed and omitted to observe and comply with the provisions of said section 1865, in that they caused and permitted said car, immediately prior and down to the time of such collision, to be propelled along and upon said street railway track on said Gravois Avenue, within said outer district, for a distance of more than three hundred feet and to the point of such collision, at a speed greater than the rate of fifteen miles per hour and at a higher and dangerous rate of speed, to-wit, twenty-five miles per hour, whereby plaintiff, being a passenger in said automobile vehicle so upon said street and track, was placed in a situation of great and extreme danger and was prevented from removing therefrom in time to avoid such injury and damage by any act on his part.

"Second: Said employees and servants of defendant, at such time and place and while said car was approaching the point of such collision, carelessly and negligently failed and omitted to observe and comply with the provisions of said section 1864, in that they failed to keep a vigilant watch for vehicles and persons on foot on or moving towards said track, said vehicle in which plaintiff was so a passenger being then and there upon said track and in plain view of said employees and servants of defendant, and by the keeping of such vigilant watch could and would have been observed by such employees and servants in time to have enabled them to prevent and avoid such collision.

"Third: Said employees and servants of defendant at such time and when said car was within about sixty feet of said automobile vehicle discovered the same upon said track and in danger of being struck by said car, and said employees and servants then and there carelessly and negligently failed and omitted to observe and comply with the provisions of said section 1864, in that upon first so discovering the appearance of such danger to said vehicle and plaintiff as a passenger therein they failed and omitted to stop said car in the shortest time and space possible, whereas said car could then and there have been stopped or greatly reduced in speed before striking said vehicle and such danger could thus have been obviated or greatly reduced.

"Fourth: Said employees and servants of defendant immediately prior to and down to the time of such collision carelessly and negligently caused and permitted said car to be propelled upon said street railway track and along said Gravois Avenue for a distance of more than three hundred feet and to such point of such collision at a high and dangerous rate of speed, to-wit, twenty-five miles per hour, and carelessly and negligently failed and omitted to ring the bell or gong with which said car was provided or to give an other audible notice or warning of the approach or passage of said car, whereas the ringing of such bell or gong or giving of such other audible notice or warning while said car was traversing such distance would have enabled plaintiff to obviate or greatly lessen the danger to himself from such approach and passage of said car at such high and dangerous rate of speed."

Answer was a general denial and a plea of contributory negligence. Reply, a general denial. Judgment nisi was for plaintiff in sum of $ 6000, and from such judgment this appeal was taken.

In the Court of Appeals (and the case is here upon the same briefs and record) the battle raged as to the propriety of instruction number one given for plaintiff. This instruction had best be set out, although only two clauses therein are challenged. It reads:

"If you believe and find from the evidence that on May 15, 1910 defendant was and since has been a corporation operating as a common carrier of passengers a certain line of street railways in this city, having tracks extended along and over Gravois Avenue at and near its intersection with Blow Street said street and avenue being public highways and said point of intersection being within the outer district specified in section 1865 of ordinance 22902 of the city of St. Louis read in evidence; that on said day, about five o'clock in the afternoon, plaintiff was a passenger in an automobile proceeding northeastwardly along said Gravois Avenue; that at such time the engine of said automobile ceased to work and said automobile came to stand upon the southwestward-bound track of said street railway at or near such point of intersection and in said outer district; that then and there a certain car of defendant, used and operated by defendant upon said street railway, through its motorman and conductor in charge thereof, came southwestwardly along said track and ran against and upon said automobile...