Quinley v. Springfield Traction Co.
| Decision Date | 14 April 1914 |
| Parties | C. F. QUINLEY, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. Arch A. Johnson, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Delaney & Delaney for appellant.
(1) The petition does not state a cause of action. It nowhere charges a negligent act, nor charges an act to have been done negligently or carelessly. Thurmond v. Ash Grove Co., 125 Mo.App. 73; Rawson v. K. C. Co., 129 Mo.App. 613. (2) The petition is not bottomed on the humanitarian doctrine, nor does the evidence warrant a recovery on such theory. Grout v. Railroad, 125 Mo.App. 552-561. (3) The negligence of plaintiff was clearly the proximate cause of the injury, hence the humanitarian doctrine does not apply and demurrer should have been sustained. Schmidt v. Railroad, 191 Mo. 215; Fry v. S. L. T. Co., 111 Mo.App. 324; Boring v Railroad, 194 Mo. 541. (4) The submission by instruction cannot be broader than the issue tendered. Davidson v. S L. T. Co., 211 Mo. 320; Beave v. S. L. T. Co., 212 Mo. 331; Heinzle v. Railroad, 213 Mo. 102; Lowenstein v. Railroad, 110 Mo.App. 686; Schroeder v. S. L. T. Co., 111 Mo.App. 67; Wojtylak v. K. T. Co., 188 Mo. 260; Hamilton v Railroad, 114 Mo.App. 504. (5) Instruction 2 is self-contradictory and inconsistent. It submits the humanitatrian doctrine and at the same time declares that contributory negligence is excluded. Wallack v. S. L. T. Co., 123 Mo.App. 160; Gessner v. Railroad, 134 Mo.App. 696. (6) Where one instruction is bad (especially one on the whole case) and another is good it constitutes reversible error, for the court cannot determine which the jury followed. The presumption is the bad one influenced if not controlled the jury. Ross v. Railroad, 132 Mo.App. 472; Shepherd v. S. L. T. Co., 189 Mo. 362; Porter v. Railroad, 199 Mo. 82; Hamilton v. Railroad, 114 Mo.App. 504; Glasgow v. Railroad, 191 Mo. 374; Wallack v. S. L. T. Co., 123 Mo.App. 160; Prendenville v. S. L. T. Co., 120 Mo.App. 596; Russell v. Poor, 133 Mo.App. 729. (7) Defendant was entitled to clear-cut instructions submitting issue of contributory negligence separate and independent of other instructions, and especially independent of humanitarian doctrine. Wallack v. Transit Co., 123 Mo.App. 160; Wren v. Railroad, 125 Mo.App. 604; Ghio v. Railroad, 125 Mo.App. 710; Tinkle v. Railroad, 214 Mo. 445; Haas v. Railroad, 128 Mo.App. 79; Ross v. Railroad, 132 Mo.App. 472; Flaherty v. St. L. T. Co., 207 Mo. 318; Van Horne v. St. L. T. Co., 198 Mo. 481; Hartman v. St. L. T. Co., 12 Mo.App. 439; King v. Railroad, 211 Mo. 13. (8) The alleged hypothetical questions on speed did not embrace the evidence. Lynch v. Railroad, 208 Mo. 139; Boring v. Railroad, 194 Mo. 541; Gouty v. Railroad, 35 Mo.App. 92.
Hamlin & Seawell for respondent.
(1) The petition is sufficient in every respect and especially after judgment. White v. Railroad, 202 Mo. 539; McQuade v. Railroad, 200 Mo. 150; Wyler v. Ratican, 150 Mo.App. 474. (2) The verdict being based upon substantial evidence is final in this court. Ellis v. Railroad, 234 Mo. 657; Waddell v. Railroad, 113 Mo.App. 680; White v. Railroad, 202 Mo. 439; Dutcher v. Railroad, 241 Mo. 138; Moore v. Transit Co., 194 Mo. 1; Childress v. Railroad, 141 Mo.App. 682. (3) The instructions were correct and have been approved in many cases. Ellis v. Railroad, 234 Mo. 675, 676; Moore v. Railroad, 136 Mo.App. 215; Frazier v. Smelting Co., 150 Mo.App. 420; Panos v. Car Co., 147 Mo.App. 547. (4) In a case based upon the humanitarian doctrine, it is proper to refuse an instruction which does not include that hypothesis. Williams v. Railroad, 149 Mo.App. 489; O'Farrell v. Railroad, 157 Mo.App. 618; Strauss v. Railroad, 166 Mo.App. 153. (5) No improper evidence was admitted. Bier v. Transit Co., 197 Mo. 231; Goff v. Transit Co., 199 Mo. 694-708; Richmond v. Railroad, 123 Mo.App. 495.
--Suit for personal injuries. Plaintiff recovered verdict and judgment for two thousand dollars. 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, Missouri, 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 twenty-nine and one-half feet. The plaintiff, a married woman about sixty-seven 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 twenty-one 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 west curb line of Lyon street. She testified that as she walked from the curb line out toward the track a westbound car passed her and that she glanced at it as it went by and that she never thought of looking toward the east and therefore did not see the car which was following the one that passed her.
There is no issue or question about her negligence in walking upon the track under the circumstances. The issue is as to whether the motorman in charge of the car saw or by the exercise of ordinary care could have seen plaintiff on the track or approaching the track in dangerous proximity thereto apparently oblivious of the approach of his car in time to have warned her by signals or to have checked the speed of the car or to have brought it to a stop in time to have averted the collision. In crossing the public street plaintiff was at a place where she had a right to be and at a place where the exercise of ordinary care required the motorman to be on the lookout for persons passing over or upon the track.
The evidence for the plaintiff tends to show that at a point one hundred and eighteen feet east of the point of collision a witness on the sidewalk on the south side of Commercial street observed the car which struck plaintiff going west at a speed of about ten or twelve miles an hour, at which time he saw the plaintiff slowly walking between the north curb line of Commercial street and defendant's north track on which the car was approaching and on which the accident occurred. The evidence introduced by the plaintiff is of a negative character as to warning signals; that is, the plaintiff and two or three of her witnesses, one of whom stood at or near the end of the sidewalk running from Lyon into Commercial street, and another (the witness who observed the car and the old lady from the point one hundred and eighteen feet from the point of contact) all swear that they did not hear any alarm signals, none swearing positively that alarm signals were not in...
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