Rowe v. United Railways Company of St. Louis
| Decision Date | 05 December 1922 |
| Citation | 247 S.W. 443,211 Mo.App. 526 |
| Parties | AUGUST B. ROWE, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS and KROGER GROCERY & BAKING COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.
REVERSED as to Kroger Grocery & Baking Co.
REVERSED AND REMANDED as to United Railways Co.
REVERSED as to Kroger Grocery & Baking Co. REVERSED AND REMANDED as to United Railways Co.
Charles W. Bates, T. E. Francis and S. P. McChesney for appellant United Railways Company of St. Louis.
(1) The general rule applicable to demurrers to the evidence requiring the court to view the testimony in its aspect most favorable to plaintiff, does not apply to statements made by plaintiff on the witness stand. The rule with respect to such statements is that, although such statements are not so favorable to plaintiffs' case as the statements of other witnesses, nevertheless, in view of the fact that they are treated as admissions, they are binding on plaintiff for the purpose of determining whether or not a prima-facie case is made. Cogan v. Railroad, 101 Mo.App. 188; Steele v. Railroad, 265 Mo. 110; Moses v. Klusmeyer, 194 Mo.App. 634; Murray v. Transit Co., 176 Mo. 189; Behen v. Transit Co., 186 Mo. 439; Graefe v Transit Co., 224 Mo. 264. (2) The court erred in refusing to give the jury the peremptory instruction to find for defendant United Railways Company of St. Louis requested by said defendant at the close of plaintiff's case and at the close of the whole case, for the reason that plaintiff was not entitled to recover under any theory of negligence counted on in his petition. (a) Plaintiff was not enttiled to recover under the last-chance doctrine or for violation of the vigilant-watch ordinance. Alexander v. Railroad, 233 S.W. 44; State ex rel. Frisco Railroad v Reynolds, 233 S.W. 219; Burge v. Railroad, 244 Mo. 76; Fleming v. Railroad, 263 Mo. 180; Keele v. Railroad, 258 Mo. 62; Paul v. Railroad, 152 Mo.App. 577; Zurfluh v. Peoples Railway Co., 46 Mo.App. 636; Baecker v. Railroad, 240 Mo. 507; Hamilton v. Railroad, 250 Mo. 714; McGee v. Railroad, 214 Mo. 530; Roenfeldt v. Railroad, 180 Mo. 554. (b) Plaintiff was not entitled to recover under the negligent speed theory, either at common law or under the so-called "speed ordinance" of the city of St. Louis. (c) Plaintiff was not entitled to recover under the negligent speed theory, either at common law or the so-called "speed ordinance" of the city of St. Louis. Negligence not proximately causing the injury complained of is not actionable. Moore v. Railroad, 176 Mo. 528; Battles v. Railroad, 178 Mo.App. 596; Jackson v. Railroad, 157 Mo. 621; State ex rel. v. Ellison, 176 S.W. 11; Jackson v. Butler, 249 Mo. 342. (d) Plaintiff's contributory negligence in permitting himself to be driven toward the track for a distance of over thirty feet, during which time, although he had seen the car approaching, he observed the driver of the truck was not looking toward the approaching car or taking any precautions whatever to ascertain where it was, bars a recovery by plaintiff on every theory of primary negligence. Alexander v. Railroad, 233 S.W. 44; Evans v. Railroad, 233 S.W. 397; Burge v. Railroad, 244 Mo. 75; Gubernick v. Railroad, 217 S.W. 33; McCreery v. Railroad, 221 Mo. 18; Owens v. Railroad, 188 Mo.App. 450; Sanguinette v. Railroad, 196 Mo. 466; Hayden v. Railroad, 124 Mo. 566; Huggart v. Railroad, 134 Mo. 673; Kelsay v. Railroad, 129 Mo. 362; Costello v. Railroad, 213 S.W. 179; Voelker v. Products Co. v. Railroad, 185 Mo.App. 310; Tannehill v. Railroad, 213 S.W. 818, 279 Mo. 158; Boring v. Railroad, 194 Mo. 541; Dyrcz v. Railroad, 238 Mo. 33; Blain v. Railroad, 184 S.W. 1142; Kelle v. Railroad, 258 Mo. 62; Walker v. Railroad, 193 Mo. 453; Vandeventer v. Railroad, 177 S.W. 834; Peters v. Lusk, 200 Mo.App. 372; State ex rel. v. Reynolds, 214 S.W. 121. It is contributory negligence as a matter of law for a passenger in the vehicle to permit himself to be driven upon a street car track when he sees, or by the exercise of ordinary care can see, that the driver is not looking for approaching cars. Fechley v. Railroad, 119 Mo.App. 358; Leopard v. Railroad, 214 S.W. 268; Tannehill v. Railroad, 279 Mo. 158. (3) The court erred in permitting plaintiff to introduce, in evidence, over the objection of defendant United Railways Company of St. Louis, the so-called "Speed Ordinance" of the city of St. Louis, inhibiting the operation of street cars at a greater rate of speed than fifteen miles an hour, for the following reasons: (a) Because plaintiff admitted that the street car was not operated at a speed in excess of fifteen miles per hour. (b) Because plaintiff failed to show that the speed of the car, whatever it may have been, was the proximate cause of the collision. See cases cited under Point 2 (c). (4) The court erred in refusing to give the jury instruction marked "A", requested by defendant United Railways Company of St. Louis, for the following reasons: (a) Because plaintiff admitted that the street car was not operated at a speed in excess of the maximum rate permitted by the so-called speed ordinance of the city of St. Louis, which was pleaded and introduced in evidence by plaintiff. (b) Because plaintiff failed to show that the speed of the car, whatever it may have been, was the proximate cause of the collision. See cases cited under Point 2 (c). (c) Because plaintiff was guilty of contributory negligence as a matter of law, as set out in Point 2 (d) See cases cited under Point 2 (d). Where plaintiff is not entitled to recover under an assignment of negligence pleaded in the petition, the failure of the court to give an instruction requested by defendant, withdrawing such assignment, is reversible error. Roseman v. Railroad, 197 Mo.App. 337; Allen v. Lumber Co. 171 Mo.App. 492; Chicago etc. Railroad v. Kroloff, 217 F. 525. (5) The court erred in refusing to give the jury instruction marked "B," requested by defendant United Railways Company of St. Louis, for the following reasons: (a) Because plaintiff admitted that the street car was not operated at a speed in excess of fifteen miles an hour, the maximum rate permitted by said ordinance. (b) Because plaintiff failed to show that the speed of the car, whatever it may have been, was the proximate cause of the collision. See cases cited under Point 2 (c). (c) Because plaintiff was guilty of contributory negligence as a matter of law, as set out in Point 2 (d). See cases cited under Point 2 (d). (6) The court erred in refusing to give the jury instruction marked "C," requested by defendant United Railways Company of St. Louis, for the following reasons: (a) Because, as set out in Point 2 (a), plaintiff failed to prove that the motorman did not keep a vigilant watch and did not stop his car within the shortest time and space possible upon the first appearance of danger to plaintiff, as required by said ordinance. See cases cited under Point 2 (a). (b) Because plaintiff was guilty of contributory negligence as a matter of law, as set out in Point 2 (d). See cases cited under Point 2 (d). (7) The court erred in refusing to give the jury instruction marked "D," requested by defendant United Railways Company of St. Louis, which sought to withdraw from the consideration of the jury the assignment of negligence pleaded in the petition counting upon the last chance doctrine, for the reason that plaintiff failed to prove, as set out under Point 2 (a), that the street car could have been stopped in time to have averted the collision after the truck entered the "danger zone." See cases cited under Point 2 (a).
Bryan, Williams & Cave for appellant Kroger Grocery & Baking Company.
(1) The plaintiff, Rowe, and the driver, Tufts, and the other helper Mulderig, were at the time of the accident engaged in a common employment, namely, the hauling and delivery of packages, and the plaintiff was a fellow servant with the driver, Tufts. The plaintiff, therefore, cannot recover for any injuries to him due to the driver's negligence, and the demurrer to the evidence of the defendant Kroger Grocery & Baking Company should have been sustained. McIntyre v. Tebbets, 257 Mo. 117. (2) It was not necessary that the defendant Kroeger Grocery & Baking Company plead that the injury to plaintiff, if any, was due to the negligence of a fellow servant. This defense is raised by the general denial. Kaminski v. Tudor Iron Works, 167 Mo. 462; Hoover v. Coal & Mining Company, 160 Mo.App. 332. (3) Although the plaintiff's petition did not charge the defendant United Railways Company with negligence in failing to sound a signal, nevertheless the defendant Kroger Grocery & Baking Company, under its general denial, was entitled to show, if it could show, and to have the jury consider any evidence offered tending to show that the failure of the United Railways Company to sound a signal was the sole cause of the collision. Braggs v. Street Railways, 192 Mo. 331. (4) Although the driver of the automobile testified that on approaching Delmar avenue he saw the street car some three hundred or three hundred and fifty feet to the west, he further testified that he proceeded on upon the theory that he could cross over with safety and did not again look for the eastbound car. He further testified that no signal was sounded by this car and that when he again looked up it was too late to avoid the collision. On these facts, the defendant Kroger Grocery & Baking Company was entitled to have the jury determine whether or not this failure to sound a signal was the sole cause of the injury, and it was error to refuse the instruction submitting this question, and it was further error to instruct the jury to disregard all...
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