Schweig v. Wells

• Decision Date: 07 May 1929
• Docket Number: No. 20229.,20229.
• Citation: 16 S.W.2d 684
• Parties: SCHWEIG v. WELLS.
• Court: Missouri Court of Appeals

16 S.W.2d 684

SCHWEIG v. WELLS.

No. 20229.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Rehearing Denied May 21, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by Sarah Schweig against Rolla Wells, receiver of the United Railways Company of St. Louis. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

J. C. Dyott and Greensfelder, Rosenberger & Grand, all of St. Louis, for appellant.

T. E. Francis and B. G. Carpenter, both of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries, alleged to have been sustained by plaintiff on December 19, 1924, when an automobile operated by her brother-in-law, Hershel B. Engel, in which she was riding as a guest or invitee, was struck by, and caught between, two of defendant's street cars. Upon a trial to a jury a verdict was returned in favor of defendant, and plaintiff, after the overruling of her motion for a new trial, has duly appealed.

The accident occurred at the intersection of Leland avenue and Delmar boulevard, in University City, Mo. Delmar boulevard runs east and west, and has tracks for east-bound and west-bound cars, while Leland avenue runs north and south, and terminates at the north side of Delmar boulevard.

Briefly stated, the evidence disclosed that Engel drove south on Leland avenue with the intention of making a left-hand turn into Delmar boulevard, and that when he came to Delmar he made a boulevard stop, and looked both to the east and to the west for approaching cars, as also did the plaintiff. Both plaintiff and Engel testified that they saw no car to the west, but that they did observe a west-bound car stopped east of the Kirkwood-Ferguson tracks, discharging passengers. Engel thereupon drove out into Delmar, without looking again towards the west, and turned to his left upon the east-bound tracks, when his automobile was struck by an east-bound car, and carried forward until it was in turn struck by the west-bound car, which had meanwhile started forward, and was wedged in between the two. Plaintiff and all of her witnesses testified that the approach of the east-bound car was not discovered by any of them until momentarily before the collision, and that no gong or other sound of alarm was heard.

In the submission of the case to the jury, all of the assignments of negligence in the petition were withdrawn, save one to the effect that the agents, servants, and employees of defendant carelessly and negligently failed to sound a bell, or give any signal or warning, while the street cars were approaching the point of collision, although they knew, or by the exercise of ordinary care might have known, that the automobile in which plaintiff was a passenger was approaching and turning upon Delmar boulevard.

The answer of defendant was a general denial, coupled with a plea of contributory negligence, in that plaintiff allowed and permitted herself to be driven into and against a moving street car, when she saw and heard, or by the exercise of ordinary care could have seen and heard, the approaching street car in time thereafter to have avoided a collision, and that she failed to warn the driver of the automobile in which she was riding, when she saw and knew, or by the exercise of ordinary care could have seen and known, that he was driving his automobile into and against a moving street car. The reply was in conventional form.

As grounds for a reversal of the judgment, plaintiff charges error in certain of the instructions given on behalf of defendant, among which was instruction No. 4, reading as follows:

"The court instructs the jury that the law requires that the plaintiff should exercise ordinary care for her own safety; that is, such care as an ordinarily prudent person would exercise under the same or similar circumstances. Therefore, if you find and believe from all the evidence in this case that the plaintiff failed to exercise such ordinary care for her own safety in failing to warn the driver of the automobile in which she was riding when she saw and knew, or by the exercise of ordinary care could have seen and known, that he was driving said automobile into and against a moving street car; and if you further find that such failure to exercise ordinary care for her own safety contributed to cause her injuries, then you should find she is guilty of contributory negligence and she cannot recover herein, and your verdict must be for the defendant."

We see no escape from the conclusion that this instruction was erroneous and prejudicial, in that it permitted the jury to convict plaintiff of contributory negligence merely upon a finding that she failed to warn the driver, when she saw and knew, or by the exercise of ordinary care could have seen and known, that he was driving his automobile into and against a moving street car, whereas any failure on her part to have given a warning could not have been such negligence as to bar...