Ries v. St. Louis Transit Co.

• Decision Date: 23 December 1903
• Citation: 77 S.W. 734,179 Mo. 1
• Parties: RIES, by Guardian, Appellant, v. ST. LOUIS TRANSIT COMPANY
• Court: Missouri Supreme Court

77 S.W. 734

179 Mo. 1

RIES, by Guardian, Appellant, v. ST. LOUIS TRANSIT COMPANY

Supreme Court of Missouri, First Division

December 23, 1903

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed.

A. R Taylor and A. L. Hirsch for appellant.

(1) The humanitarian doctrine prevailing in this State, defendant is liable under the evidence and the case should have gone to the jury. Morgan v. Railroad, 159 Mo. 262; Hutchinson v. Railroad, 161 Mo. 246. The case should have gone to the jury even had deceased been a trespasser on defendant's track. Chamberlain v. Railroad, 133 Mo. 605; Morgan v. Railroad, supra; Inland v Tolson, 139 U.S. 558; Martin v. Railroad, 194 Ill. 147. (2) It is competent to ask a witness who was present at the time how far the motorman could have seen ahead, supposing him to possess good sight. (3) Witness should have been permitted to straighten out her testimony and clear the confusion caused by her not understanding the questions put by counsel for defendant, she desiring to do so and being recalled for that purpose.

Boyle, Priest & Lehmann and Geo. W. Easley for respondent.

The deceased could by looking and listening, at any time after coming out of the saloon, have both seen and heard the car and avoided the injury. His failure to do so constitutes such negligence as to defeat any recovery. Holverson v. Railroad, 157 Mo. 216; Watson v. Railroad, 133 Mo. 250; Boyd v. Railroad, 105 Mo. 371; Sinclair v. Railroad, 133 Mo. 241; Huggert v. Railroad, 134 Mo. 673; Vogg v. Railroad, 138 Mo. 172; Culbertson v. Railroad, 104 Mo. 35; Railroad v. Mosley, 57 F. 922; Kirtley v. Railroad, 65 F. 391; Murphy v. Railroad, 153 Mo. 262; Butts v. Railroad, 98 Mo. 272; Loring v. Railroad, 128 Mo. 349; Kries v. Railroad, 148 Mo. 321; Kotney v. Railroad, 151 Mo. 35; Kelsey v. Railroad, 129 Mo. 262; Lane v. Railroad, 132 Mo. 4; Scofield v. Railroad, 114 U.S. 615; Maxey v. Railroad, 113 Mo. 1; Payne v. Railroad, 136 Mo. 562. It has ever been the rule in this State: "That it is such negligence for one to cross or get upon a railway track at a public crossing, or elsewhere, without looking or listening for an approaching train, as precludes a recovery for an injury sustained by him from a passing train or locomotive, whether the company's negligence also contributed directly to produce the injury or not, and has so often been decided by this court that it must now be regarded as the settled law of this State." Kelly v. Railroad, 75 Mo. 140; Maher v. Railroad, 64 Mo. 267; Fletcher v. Railroad, 64 Mo. 484; Harlan v. Railroad, 64 Mo. 480; Zimmerman v. Railroad, 71 Mo. 476; Moody v. Railroad, 68 Mo. 470; Bell v. Railroad, 72 Mo. 50; Purl v. Railroad, 72 Mo. 168; Adams v. Railroad, 74 Mo. 533. It has also been the rule of the Courts of Appeals of this State. Hanselman v. Railroad, 88 Mo.App. 123; Killion v. Railroad, 86 Mo.App. 473; Skipton v. Railroad, 82 Mo.App. 143; Molyneux v. Railroad, 81 Mo.App. 125; Lien v. Railroad, 79 Mo.App. 475; Jones v. Barnhart, 63 Mo.App. 501; Smith v. Railroad, 52 Mo.App. 36; Glenville v. Railroad, 51 Mo.App. 629. There is nothing in this record to bring this case within the exception to the general rule, that the negligence of plaintiff which contributes to the injury bars a recovery, which has lately grown up in this State, and which is known as the "humanitarian rule." That exception, denominated the humanitarian rule, only applies to cases where the acts of the defendant were so willful, wanton or reckless as to show a disregard of human life. The doctrine of the humanitarian rule is that when it is alleged and shown by the plaintiff that the act was willfully, wantonly or recklessly done, "the defendant ought not to be heard to say that the plaintiff was guilty of contributory" negligence. Sharp v. Railroad, 161 Mo. 236; Tanner v. Railroad, 161 Mo. 497; Morgan v. Railroad, 60 S.W. 195; Kellny v. Railroad, 101 Mo. 67. "This exception is dictated by the plain rules of humanity. It means this and no more, that recklessness on the one part does not excuse willful recklessness on the other." Kelly v. Railroad, 18 Mo.App. 162.

OPINION

BRACE, P. J.

This is an action for the recovery of damages for the death of Joseph Ries, husband of the plaintiff, which it is alleged was caused by the negligence of the defendant in operating one of its cars going north on Seventh street. The petition charges that said Ries was on the 30th day of March, A. D. 1900, struck, run over and killed by said car, through the negligence of the defendant's servant or agent in charge of the operation of said car, "in this, that he failed to sound the gong or bell upon said car or to warn said Joseph Ries of its approach, or to stop said car or to operate the fender of said car so as not to run over him, but instead of so doing carelessly and negligently caused and suffered said car to run upon and over him, thereby causing his death. That said car was at the time, or immediately before, it struck said Joseph Ries as aforesaid, running at an unlawful rate of speed. That said defendant was negligent in that the track was in defective condition and it carelessly permitted it to remain so."

The answer was a general denial, and a plea of contributory negligence.

No evidence was introduced tending to prove that the track was in a defective condition, that the car was running at an unlawful rate of speed, or that the fender was not operated properly.

In support of the other allegations of negligence two witnesses, Lizzie Reiter and Theresa Laubersheiner, who claimed to have seen the accident, and one witness, H. C. Montgomery, who testified as to the distance within which a car could be stopped at the place of the accident, were introduced.

At the conclusion of the plaintiff's evidence the defendant demurred thereto. The demurrer was sustained. The plaintiff took a nonsuit with leave and in due time filed her motion to set the same aside, which being overruled, she appealed. The errors assigned for reversal are:

The sustaining the demurrer to the evidence; the refusal of the court to permit the witnesses Reiter and Laubersheiner to express an opinion as to how far the motorman could have seen ahead; and to permit these witnesses to straighten out their testimony and clear the confusion caused by their not understanding the questions put by counsel for defendants.

As to the two last assignments, it is only necessary to say, that these witnesses not only testified that the motorman could see the deceased, but to all the physical facts necessary to determine how far he could have seen him, and were permitted to make all the corrections they desired in their testimony. The only basis for this last assignment is that the court would not permit counsel to go with them again over the same ground that they had already been over three or four times.

The only real question in the case is whether the court committed error in sustaining the demurrer to the evidence. The accident happened at the intersection of Seventh and Pestalozzi streets in the city of St. Louis, on March 30 1900, about twenty minutes after eight o'clock p. m. Seventh street runs north and south, and Pestalozzi street east and west, crossing each other at right angles. The defendant's street railway is located on Seventh street. It is a double-track railway, the cars...