Roper v. Greenspon

• Decision Date: 01 December 1917
• Parties: BRUCE ROPER v. LOUIS GREENSPON, Administrator of Estate of ROSE GREENSPON, JACOB GREENSPON, ABRAHAM GREENSPON and LOUIS GREENSPON, Composing Firm of JOSEPH GREENSPON & SONS, Appellants
• Court: Missouri Supreme Court

198 S.W. 1107

272 Mo. 288

BRUCE ROPER v. LOUIS GREENSPON, Administrator of Estate of ROSE GREENSPON, JACOB GREENSPON, ABRAHAM GREENSPON and LOUIS GREENSPON, Composing Firm of JOSEPH GREENSPON & SONS, Appellants

Supreme Court of Missouri

December 1, 1917

Appeal from St. Louis City Circuit Court. -- Hon. William N. Kinsey Judge.

Reversed and remanded.

Jones Hocker, Sullivan & Angert and Vincent L. Boisaubin for appellant.

(1) The facts in this case show that plaintiff was guilty of contributory negligence as a matter of law, and therefore the court erred in refusing to give defendants' instruction in the nature of a demurrer to the evidence at the close of plaintiff's case and again at the close of the entire case. Solomon v. Duncan, 185 S.W. (Mo. App.) 1141; Lorenz v. Tisdale, 127 A.D. 433; Rebillard v Railroad, 216 F. 503; Const. Co. v. White, 130 Tenn. 520; Ry. Co. v. Vangilder, 132 Tenn. 487; Lauson v. Fond du Lac, 141 Wis. 57; McDonald v. Yoder, 80 Kan. 25; Bucholtz v. Radcliffe, 129 Iowa 28; Wallower v. Webb City, 171 Mo.App. 214. (2) The court erred in refusing to admit in evidence the speed ordinance pleaded in defendants' answer and offered in evidence in support of the defense. Said ordinance was not in conflict with the state statute and is valid. The court erred in refusing defendants' instruction submitting the city speed ordinance to the jury and instructing the jury that if they found a violation of said ordinance and that such violation contributed to the injuries plaintiff could not recover. The state statute did not attempt to regulate the speed of automobiles; it did not attempt to fix any speed limit upon automobiles; it was silent on that upon which the city ordinance spoke; it did not expressly repeal the city ordinance regulating and fixing speed. The statute and the ordinance are, therefore, not in conflict, and the ordinance is valid. Laws 1911, p. 322; St. Louis v. Williams, 235 Mo. 518; St. Louis v. Klausmeier, 213 Mo. 126; St. Louis v. Ameln, 235 Mo. 682; St. Louis v. De Lassus, 205 Mo. 578; State v. Clarke, 54 Mo. 17; St. Louis v. Cafferata, 24 Mo. 94; People v. Bell, 148 N.Y.S. 753; Chicago v. Ice Cream Co., 252 Ill. 311; 2 Dillon on Mun. Corp., sec. 632; St. Louis v. Bernard, 249 Mo. 51; Brazier v. Philadelphia, 215 Pa. 297; Christensen v. Tate, 128 N.W. 622; Bellingham v. Cissna, 44 Wash. 397.

Sidney Thorne Able for respondent.

(1) Plaintiff was not guilty of negligence. Baker v. Fall River, 187 Mass. 53; Corcoran v. New York, 188 N.Y. 131; Carradine v. Ford, 187 S.W. 291; Strauchon v. Railway, 232 Mo. 587; Bluedorn v. Railway, 108 Mo. 488. On the issue of contributory negligence, plaintiff is entitled to the full force of all uncontroverted facts, and to all his controverted evidence, and to every reasonable and favorable construction and inference deducible from all the evidence. Peterson v. Railroad, 265 Mo. 462; Tabler v. Railway, 93 Mo. 79; Buesching v. Gaslight Co., 73 Mo. 231. Unless the only conclusion that can reasonably be drawn from the evidence is that plaintiff was guilty of contributory negligence -- only when there can reasonably be no two opinions on the subject, should a demurrer to the evidence be sustained. Campbell v. Railway, 175 Mo. 161; Buesching v. Gaslight Co., 73 Mo. 233. Where there is a flagrant violation of a law or municipal regulation, resulting in an injury, contributory negligence should be clearly made out before the court relieves the defendant upon that ground. Bluedorn v. Railway, 108 Mo. 437; Coffee v. Carthage, 186 Mo. 573; Towler v. Sedalia, 77 Mo. 443. The law will not concern itself over closely in scrutinizing and gauging the judgment of men facing confusing perils. Wilson v. Railroad, 169 Mo.App. 405; Corcoran v. New York, 188 N.Y. 140; Underwood v. Railway, 190 Mo.App. 418. (2) The trial court did not err in refusing to admit in evidence the so-called speed ordinance of St. Louis, as the Motor Vehicle Act is "exclusively controlling" on the regulation of the speed of motor vehicles on the public highways throughout the State. The court did not err in refusing defendant's instruction based upon the ordinance. The State, by the express words used in the act, exercised its prerogative and made the Motor Vehicle Act the exclusive law on this subject in Missouri. Ewing v. Hoblitzelle, 85 Mo. 64; Ferrenbach v. Turner, 86 Mo. 419; Building Assn. v. Telephone Co., 33 Mo. 267; Marie v. Transit Co., 116 Mo.App. 22; St. Louis v. Klausmeier, 212 Mo. 127; St. Louis v. Meyer, 185 Mo. 583; 17 Cyc. 871-872; Byrne v. Drain, 60 P. 433; 36 Cyc. 1114 and 1115; State v. Kessels, 120 Mo.App. 233; Peterson v. Railroad, 265 Mo. 462; State v. Yardley, 95 Tenn. 546; Smith on Municipal Corporations, sec. 544; People v. Hayes, 66 Misc. (N.Y.) 608; Buffalo v. Lewis, 192 N.Y. 193; Frisbie v. Columbus, 80 Ohio St. 686; Helena v. Dunlap, 102 Ark. 131; Christensen v. Tate, 128 N.W. 622; Ex parte Smith, 146 P. 82; St. Louis v. Packing Co., 141 Mo. 375; State v. Jaeger, 63 Mo. 405; Brazier v. Philadelphia, 215 Pa. 297; Bellingham v. Cissna, 44 Wash. 397.

GRAVES, C. J. Walker, Faris, Woodson and Williams, JJ., concur; Bond, J., concurs in result; Blair, J., concurs in paragraphs 1, 3, 4 and 5 and in result.

OPINION

In Banc.

GRAVES C. J.

This case reaches us upon a certification by the St. Louis Court of Appeals. Lengthy opinions upon both sides of the conceived vital questions appear.

The action is one for personal injuries, alleged to have been occasioned by the negligence of defendants. The petition counts upon both ordinance and common law negligence, in this language: "Plaintiff for his cause of action states that on or about the fourteenth of July, 1912, at about nine-forty-five p. m., between sunset and sunrise, plaintiff being then and there a chauffeur in the employ of and driving a taxicab for the St. Louis Taxicab Company, drove in an easterly direction along the right or south side of Lawton Avenue to Channing Avenue, both being public highways in a residence section of the city of St. Louis, Missouri; that the defendants were at the aforesaid time the owners of a wagon, loaded with heavy steel 'I' beams which extended eight or ten feet behind the rear of the wagon, and two horses, in the possession of a driver, the servant and employee of the defendants, who was then and there in charge of same for defendants, which wagon and team were at the time aforesaid facing north on Channing Avenue at the intersection of Lawton Avenue, standing across and blocking Lawton Avenue; that there was no light or lantern displayed on the outside of said wagon; that at said time there was in force a certain ordinance of the city of St. Louis, Missouri, providing that:

"'On every hackney carriage, cab or cabriolet, when driven upon the streets between the hours of sunset and sunrise, shall have fixed on some conspicuous part of the outer side thereof, two lighted lamps, with plain glass fronts and sides, on which shall be painted in legible figures, at least one inch long, the registry number thereof. Every automobile, when upon any public street, shall carry between the hours of sunset and sunrise at least two lighted lamps showing white lights visible at least two hundred feet in the direction toward which the automobile is proceeding, and shall also exhibit at least one red light visible in the reverse direction. All other vehicles while in use upon the streets between the hours of sunset and sunrise, shall display one or more lights or lanterns on the outside of such vehicles, visible from front and rear,'

being Section No. 1349; that on account of the negligence of defendants, their servant and employee in failing to observe the requirements of said ordinance and in failing to display a light or lantern on outside of said wagon at aforesaid time, being between the hours of sunset and sunrise, plaintiff driving taxicab east on right or south side of Lawton Avenue, as aforesaid, exercising due care for his own safety, was unable to see said unlighted wagon loaded with heavy steel 'I' beams, drove into and against the ends of the heavy steel 'I' beams, which extended eight or ten feet from the rear of said wagon, injuring himself as hereinafter stated.

"Plaintiff further states that the defendants, their servant and employee, carelessly and negligently allowed the said wagon loaded with heavy steel 'I' beams, which extended eight or ten feet behind the wagon, to come to a standstill on Channing Avenue across Lawton Avenue, a much used public highway, on a dark night at aforesaid time, carelessly and negligently permitting it to remain there for thirty minutes or more while driver, a servant and employee of defendants, of said wagon owned and about the business of defendants at said time, unhitched the team from the wagon, argued the advisability of trading teams with another driver, a servant and employee of defendants driving another wagon for said defendants at said time near said place, and re-hitched same team to said wagon, without giving any signal or warning to approaching vehicle driven by plaintiff and without displaying a light on the heavy steel 'I' beams which extended eight or ten feet from the rear of the wagon and in the path of east-bound traffic on Lawton Avenue; each and all of which acts and omissions on the part of defendants, its servants and employees, proximately and directly contributed to the aforesaid accident and injuries resulting therefrom to plaintiff hereinafter stated.

"Plaintiff further states that said driver, a servant and employee of defendants, was not a fit or proper person to be intrusted with the said team and wagon of defendants, loaded with heavy steel 'I' beams which extended eight or ten feet from the rear of said wagon, all of...