Phelan v. Granite Bituminous Pavomg Company
| Decision Date | 26 April 1910 |
| Parties | WILLIAM J. PHELAN v. GRANITE BITUMINOUS PAVING COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Reversed and remanded.
Percy Werner and Wm. C. Marshall for appellant.
(1) The demurrers to the evidence should have been sustained: both that offered at the close of plaintiff's case, and that offered at the close of the whole case. Defendant owed plaintiff no duty, and therefore did not fail in the performance of any duty. (a) Duty lies at the foundation of negligence; and if defendant owed plaintiff no duty, it is not liable to plaintiff. Gurley v. Railroad, 104 Mo 223; Roddy v. Railroad, 104 Mo. 244; Atherton v Coal Co., 106 Mo. 591; Barry v. Calvary Cemetery, 106 Mo.App. 362; Glaser v Rothschild, 106 Mo.App. 424; Pueschell v. Wire Works, 79 Mo.App. 459. (b) Defendant did not owe to plaintiff the duty of operating the roller in any different manner from that in which it was operated. A. The testimony introduced by plaintiff (and defendant's evidence is to the same effect), establishes the fact that neither the puffing, nor the so-called whistling, was unusual. The witnesses for plaintiff testify that on many previous occasions they had heard like puffing and like whistling. The fact that there was no whistle on the roller is immaterial in view of the testimony of plaintiff's witnesses. The fact remains that what they mistakenly took to be whistling was not unusual. B. There is no allegation in plaintiff's pleadings, and there was no evidence that any of these noises were unnecessary at the time of the accident. C. The roller was lawfully on Laclede avenue, and was a proper and necessary implement for the performance of defendant's contract with the city. Lane v. Lewiston, 91 Me. 292; Cairncross v. Pewaukee, 78 Wis. 71; Dist. of Columbia v. Moulton, 182 U.S. 581. The city would not have been liable under the circumstances of this case, and defendant is equally free from liability. (c) It was not a part of the duty of the defendant's engineer to be constantly on the lookout for frightened horses; especially in view of the fact that the street was closed, and no person had a legal right to drive on it. Frye v. Railroad, 200 Mo. 377. A. No such duty is charged in the plaintiff's pleadings. B. The engineer was there to operate that roller for the purpose of reconstructing a street for the city, not for defendant; for the benefit of the public, not for defendant's benefit. No such duty devolved upon the engineer as rests upon the motorman of a street car, or the engineer of a steam locomotive. C. The engineer had a right to assume that no person would drive a horse up to that roller, unless he was sure the horse would not become frightened; and his right to so assume was absolute in view of the prohibition of the ordinance, and the warning notice at the head of the street. American Brewing Assn. v. Talbot, 141 Mo. 685; Winckler v. Railroad, 169 Mo. 598; McLeland v. Railroad, 105 Mo.App. 479; Wendall v. Railroad, 100 Mo.App. 561; Paden v. Van Blarcom, 100 Mo.App. 193, 181 Mo. 117. The presumption is that the engineer did his duty. Jewitt v. Railroad, 50 Mo.App. 551; McAllister v. Ross, 155 Mo. 94; State ex rel. v. Crumb, 157 Mo. 556; Monumental Bronze Co. v. Dotz, 92 Mo.App. 10; Guest v. Railroad, 77 Mo.App. 261. (d) The evidence introduced by plaintiff shows that the engineer did, in fact, stop the roller immediately upon becoming aware of plaintiff's peril. A. Plaintiff himself testifies that the engineer was not in a position to see plaintiff; that his back was turned to plaintiff, and he was looking away from plaintiff, at the time plaintiff testifies that the horse became frightened, and until the accident happened. B. The engineer's testimony is that he did observe the horse, but that in his opinion the horse did not become frightened until he reached the spot where plaintiff's wagon was overturned, and that the engineer then promptly stopped the roller. Frye v. St. Louis Railroad, 200 Mo. 377. Under that decision plaintiff must not only prove that the engineer actually saw him, but that he actually saw he was in danger. C. No other witness testifies on this point. 2. Plaintiff's violation of the city ordinance was the cause of the accident, and he has no right of action for an injury which could not have occurred but for his violation of law. (a) The use of the streets by vehicles may be regulated by the city. Kansas City v. Richardson, 90 Mo.App. 457; State ex rel. v. Murphy, 130 Mo. 22. (b) A violator of the law cannot come into a court of justice and ask relief from the consequences of his own unlawful act, unless he alleges and proves that his injury was caused by a wilful and wanton act of the defendant. Barney v. Railroad, 126 Mo. 392; Newcomb v. Boston Protective Dept., 146 Mass. 596; Clark v. Railroad, 127 Mo. 213; Abbott v. Wolcott, 38 Vt. 672; Crescent Township v. Anderson, 114 Pa. St. 643. (c) The violation of a statute or ordinance is negligence per se, and the rule applies to the plaintiff equally with the defendant. Weller v. Railroad, 120 Mo. 655; Barney v. Railroad, 126 Mo. 392; Johnson v. Simonton, 43 Cal. 242; Jackson v. Shawl, 29 Cal. 267. Especially where plaintiff had, as in the case at bar, warning that the street was closed. Ray v. Poplar Bluff, 70 Mo.App. 261. (d) The accident was the direct result of plaintiff's violation of the law. (e) Even if the ordinance had not been set forth in the notice of "Street Closed," plaintiff is conclusively presumed to know the ordinance. Jackson v. Railroad, 118 Mo. 218; Heland v. Lowell, 3 Allen (Mass.) 407. (f) It is immaterial whether or not the ordinance contains express words of prohibition. Downing v. Ringer, 7 Mo. 585; Amusement Co. v. Forest Park Co., 192 Mo. 424; Hatch v. Hanson, 46 Mo.App. 330; State v. Canton, 43 Mo. 48; Jackson v. Shawl, 29 Cal. 267. 3. Plaintiff, by taking the route which led through Laclede avenue, when other, and perfectly safe, routes were open to him, which routes were as convenient as that through Laclede avenue, assumed the risk of all consequences which might result from driving past the steam roller. O'Donnell v. Patton, 117 Mo. 20; Junior v. Electric Co., 127 Mo. 79; Clark v. Railroad, 127 Mo. 213; Cohn v. Kansas City, 108 Mo. 392; Gerdes v. Foundry Co., 124 Mo. 355; Heberling v. Warrensburg, 204 Mo. 614; Ray v. Poplar Bluff, 70 Mo.App. 261; Fitzgerald v. Paper Co., 155 Mass. 158; Schaeffler v. City, 33 Oh. St. 246; Corlett v. Leavenworth, 27 Kas. 673; Erie v. Magill, 101 Pa. St. 616; Centralia v. Kronce, 64 Ill. 23; Knickerbocker Ice Co. v. Leyds, 128 Ill.App. 66; Wilson v. Charlestown, 8 Allen 137; Lane v. Lewiston, 91 Me. 295; Lovinguth v. Bloomington, 71 Ill. 241; Wright v. St. Cloud, 54 Minn. 97; Dist. of Columbia v. Moulton, 182 U.S. 576. (a) There is no repugnancy between this proposition and the decisions to the effect that one is not bound to entirely refrain from travel over a street in which there is a defect, if such defect can be avoided by the exercise of reasonable care. Cohn v. Kansas City, 108 Mo. 393; Beach on Cont. Negl., sec. 247; Gerdes v. Foundry Co., 124 Mo. 356; Ray v. Poplar Bluff, 70 Mo.App. 258; Gosport v. Evans, 112 Ind. 133; Harris v. Clinton, 64 Mich. 447; Wright v. St. Cloud, 54 Minn. 94; Fulliam v. Muscatine, 70 Ia. 436. (b) The danger, if any, from the appearance and noises of the roller filled the street; there was no escape from them except by not going on the street. (c) Plaintiff was not compelled to take the route over Laclede avenue. Market v. St. Louis, 56 Mo. 189; Ashby v. Gravel Road Co., 99 Mo.App. 186. (2) There is no room in this case for the application of the last chance doctrine. 1. This issue is not properly raised by the pleadings. (a) Plaintiff does not allege that he was negligent, and that, notwithstanding his negligence, defendant might have prevented the accident. The plaintiff's primary negligence is essential to the calling into exercise of the last chance rule. 2. This ground of recovery is affirmative, and the burden is on the plaintiff to prove the facts establishing it. It is not for defendant to show the nonexistence of such facts. 3. The evidence failed to show the necessary facts. (a) Plaintiff's testimony shows that the defendant's engineer could not have seen plaintiff's peril, since, according to plaintiff's testimony, the engineer's back was turned toward plaintiff, and he was looking away from plaintiff. (b) The testimony of plaintiff's other witness, the engineer, shows that he did stop the roller the instant he perceived plaintiff's danger. (c) The instructions failed to present this issue properly. (d) Plaintiff's negligence was active, not omissive. Dale v. Construction Co., 108 Mo.App. 97. 4. It requires more than the showing of a mere possibility that the accident might have been avoided in order to bring a case within this doctrine. Markowitz v. Railroad, 186 Mo. 359. 5. Where there is no element of wilfulness or wantonness, this doctrine has no application. Kellny v. Railroad, 101 Mo. 75; Rapp v. Railroad, 190 Mo. 159; Theobald v. Railroad, 191 Mo. 438; Deane v. Railroad, 192 Mo. 584; Clancy v. Railroad, 192 Mo. 651; Zumault v. Railroad, 175 Mo. 313; Howerson v. Railroad, 157 Mo. 216. (3) Instruction 1 is fatally erroneous. (a) There is no evidence to support it. The only act of negligence submitted to the jury is the failure of the engineer to act after he saw that plaintiff was in peril. The record contains no evidence tending to establish this fact. On the contrary, the testimony of the engineer, plaintiff's own witness, is positive that he did act the instant he saw the danger. (b) All these instructions ignore the defense that plaintiff was in the...
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