Quinley v. Springfield Traction Co.

• Decision Date: 28 March 1914
• Parties: QUINLEY v. SPRINGFIELD TRACTION CO.
• Court: Missouri Court of Appeals

165 S.W. 346

180 Mo. A. 287

QUINLEY v. SPRINGFIELD TRACTION CO.

Springfield Court of Appeals. Missouri.

March 28, 1914.

1. STREET RAILROADS (§ 117)—INJURIES—ACTIONS—JURY QUESTION.

In an action for personal injuries by being struck by a street car, in which plaintiff relied on the humanitarian doctrine, evidence held sufficient to go to the jury on the issue whether the motorman by due care could have prevented the accident.

2. STREET RAILROADS (§ 93)—DUTIES OF MOTORMAN—MAINTAINING LOOKOUT.

A motorman is required, in the exercise of ordinary care, to be on the lookout for persons crossing the track in a public street.

3. EVIDENCE (§ 586)—NEGATIVE EVIDENCE— WEIGHT.

Evidence by witnesses, who were not shown to be capable of hearing or to have had their attention upon the matter, that they did not hear a signal by a street car was not contradictory of the positive testimony of disinterested witnesses that they heard the gong, and were thereby caused to look up, and saw plaintiff on the track.

4. STREET RAILROADS (§ 103)—NEGLIGENCE—HUMANITARIAN DOCTRINE.

To hold as a matter of law that plaintiff was not entitled to recover for injuries on a street car track under the humanitarian doctrine, the court must be able to say that plaintiff's peril could not have been apparent to a

reasonably prudent motorman until it was impossible for him to stop the car by the exercise of this means at his command.

5. STREET RAILROADS (§ 110)—INJURIES—ALLEGATIONS OF NEGLIGENCE.

A petition, in an action for injuries by being struck by a street car, which alleges that, "by reason of the negligence and carelessness of the defendant in charge of the car as aforesaid," plaintiff was injured, sufficiently charges that the acts previously recited in the petition were negligently done.

6. STREET RAILROADS (§ 93)—DUTIES OF MOTORMAN.

A motorman in charge of a car, upon approaching one in a dangerous position on the track, must use all the efforts required by reasonable prudence to check the car and give such warning as is calculated to cause the pedestrian to realize his danger.

7. STREET RAILROADS (§ 118)—INSTRUCTIONS —CONFORMITY TO PETITION.

An instruction, in an action for injuries by being struck by a street car, that if the motorman saw, or, by ordinary care could have seen, plaintiff's danger, and thereafter was negligent in that he failed to exercise ordinary care "in the use of the means at his command to avoid said collision," etc., was not objectionable as being broader than the petition, which averred that, after plaintiff's perilous position was known, or by ordinary care could have been known, the motorman negligently failed to give any signal, and negligently failed to check the speed of the car or stop it in time to have prevented the injury, though by the exercise of ordinary care he could have done so; the instruction not misleading the jury into finding defendant negligent on the ground that the collision could have been avoided by any other means than by checking the car or giving signals as stated in the petition.

8. TRIAL (§ 251)—INSTRUCTIONS—CONFORMITY TO PETITION.

While it is better for instructions to follow as nearly as possible the allegations of the petition as to negligence, etc., the instructions cannot be complained of on the ground that they do not follow the allegations, where it appears from the petition, evidence, and instructions that the issue was not in fact broadened.

9. NEGLIGENCE (§ 83)—HUMANITARIAN DOCTRINE — EFFECT ON CONTRIBUTORY NEGLIGENCE.

The humanitarian doctrine is applicable only where the person injured is negligent, so that, if that doctrine is applicable, the question of contributory negligence is not in the case.

10. DAMAGES (§ 208)—PERMANENT INJURIES —JURY QUESTION.

In an action for injuries by being struck by a street car, evidence held to authorize the submission of the question of permanent injuries to the jury.

11. APPEAL AND ERROR (§ 1066)—HARMLESS ERROR—INSTRUCTIONS.

An instruction submitting the question of permanent injuries to the jury, in a personal injury action, held not prejudicial to defendant, even if the evidence did not authorize the submission of that question.

12. TRIAL (§ 296)—INSTRUCTIONS—CURE BY OTHER INSTRUCTIONS.

An instruction that it was the duty of a motorman to keep a reasonable lookout for persons on the track or approaching it, and if plaintiff was approaching the track and was unconscious of the street car's approach, and it was apparent to a reasonably prudent person that she was unmindful of danger and was going upon the track, then it was the motorman's duty to at once take precaution to avoid a collision, was not erroneous as being incomplete and indefinite; other instructions having properly declared the law applicable and fully charged on the humanitarian doctrine.

13. STREET RAILROADS (§ 118)—INSTRUCTIONS —CONFORMITY TO ISSUES.

Requested instructions on contributory negligence were properly refused, where the pleadings and evidence made out a case under the humanitarian doctrine.

14. EVIDENCE (§ 553)—HYPOTHETICAL QUESTIONS—STATEMENT OF CONDITIONS—NECESSITY.

The omission from a hypothetical question to an expert as to the distance within which a street car could be stopped, of the conditions of the car, such as its length, size, or weight, the kind of motors used, the braking appliances, the nature of its load, and its general condition, was reversible error; these elements being admittedly material in determining the distance within which the car could be stopped.

15. STREET RAILROADS (§ 93) — DUTIES OF MOTORMAN.

If, when the danger of a pedestrian on a street car track was discovered, the car was too close to permit ringing the gong before attempting to stop the car, it was the motorman's duty to at once stop the car, or to both sound the gong and stop the car at the same time, and he could not refrain from stopping until it became apparent that plaintiff did not hear the gong.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Action by C. F. Quinley against the Springfield Traction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Delaney & Delaney, of Springfield, for appellant. Hamlin & Seawell, of Springfield, for respondent.

FARRINGTON, J.

Suit for personal injuries. Plaintiff recovered verdict and judgment for $2,000. Defendant has perfected an appeal to this court.

The plaintiff's petition is based solely upon the humanitarian doctrine. The answer consists of a general denial and a special defense which is in the nature of a general denial, admitting defendant's incorporation, and alleging that plaintiff walked upon the track of the defendant in front of an approaching street car, and so close thereto that the same could not, by the exercise of ordinary care, be stopped in time to have prevented the collision. At the close of all the evidence, the defendant requested an instruction in the nature of a demurrer to the evidence, which was refused, of which ruling, together with others to which we will refer, complaint is now made. As the plaintiff's case, if she has a case, must withstand the attack made by the demurrer to the evidence, we will first notice that point.

There is evidence in the record tending to show a state of facts which we think clearly entitled the plaintiff to have her case submitted to the jury.

Summarized from a long record, the facts are about as follows: The defendant owns and operates an electric street railway system, with a double track, running east and west on Commercial street in the city of Springfield, Mo., intersecting Lyon street, which runs north and south, and which has a sidewalk only along its east side. Defendant's cars running west on Commercial street travel along the north track, and stop on the west side of Lyon street to take on or let off passengers, if there are any. Defendant's cars moving eastward along Commercial street travel along the south track. Boonville street, running north and south parallel with Lyon street, intersects Commercial street at a point two blocks east of Lyon. The grade from Boonville street to a point west of Lyon street is a descending one to some extent. The accident occurred on defendant's north track on Commercial street in the daytime, somewhere between the east and west curb lines of Lyon street, if they were projected into Commercial street as far as the defendant's tracks. The width of Lyon street, between the curb lines, is 29½ feet. The plaintiff, a married woman about 67 years of age, left the house from which she was moving (which was somewhere north of the place of the accident) and came south along the east side of Lyon street. She intended to cross to the south side of Commercial street and go on south on Lyon. She had in her arms a mirror, an umbrella, a sack with some young chickens in it, and probably one other bundle, and wore a fascinator or some covering over her head and ears, but which did not interfere with her vision. The evidence tended to show that she left the sidewalk on the east side of Lyon street, stepped down from the curb into Commercial street, and proceeded to cross the last-named street in a southwesterly direction. The distance from the curb line of Commercial street to defendant's north track is about 21 feet. She proceeded in this direction, walking about one mile per hour, picking her way over the street, which had been made muddy by a recent rain, and without looking once to the east, in which direction a person similarly situated could see a car coming for a distance of at least two blocks, she walked onto the north track and got near the south rail of the north track, when a car coming from the east struck her and threw her up and back on the pavement north of the track. The car stopped, so that the back end of it was several feet west of where she was thrown, and the back end of the car was standing at a point on the track near or opposite the...