Schweig v. Wells

• Decision Date: 08 April 1930
• Docket Number: No. 20229.,20229.
• Citation: 26 S.W.2d 851
• Parties: SCHWEIG v. WELLS.
• Court: Missouri Court of Appeals

26 S.W.2d 851

SCHWEIG v. WELLS.

No. 20229.

St. Louis Court of Appeals. Missouri.

April 8, 1930.

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, a corporation. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff appeals.

Affirmed.

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 which plaintiff alleges she received on December 19, 1924, in a collision between an automobile driven by one Herschel B. Engel, in which she was riding as a guest or invitee, and one of defendant's street cars. Upon a trial to a jury, a verdict was returned in favor of defendant, and after the overruling of her motion for a new trial, plaintiff has duly appealed to this court.

This is the second opinion in the case, the first being reported at 16 S.W.(2d) 684, wherein we reversed the judgment, and remanded the cause for a new trial, for what we had thought to be error in an instruction given in defendant's behalf. Subsequently the case went to the Supreme Court on certiorari, where our record was quashed in an opinion. State ex rel. Wells v. Haid, 25 S.W.(2d) 92, handed down February 19, 1930.

The pleadings and evidence were briefly summarized in our former opinion as follows:

"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 then upon 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."

Plaintiff's complaint goes wholly to alleged error in certain instructions which were given by the court at the instance and on behalf of defendant.

The first of the instructions criticized is instruction No. 3, which told the jury that if they found and believed from all the evidence in the case that the collision between the street car and the automobile in which plaintiff was riding was solely due to the negligence of the driver of the automobile, then plaintiff could not recover, and a verdict should be returned for defendant.

It is quite true that such an instruction has been condemned by our Supreme Court on several occasions. In Boland v. St. Louis-S. F. Ry. Co. (Mo. Sup.) 284 S. W. 141, the statement of the rule of law was not particularly criticized, but rather the cryptic way in which the information was conveyed to the jury, which the court felt was calculated, not to enlighten, but to confuse. An instruction similarly phrased was also condemned, but without discussion, in Shumate v. Wells, 320 Mo. 536, 9 S.W.(2d) 632.

What we take to be the real basis for the condemnation of the instruction is to be found tersely stated in Peppers v. St. Louis S. F. Ry. Co., 316 Mo. 1104, 295 S. W. 757, and in Smith v. St. Louis S. F. Ry. Co. (Mo. Sup.) 9 S.W.(2d) 939, where it is held that while the occupant of an automobile cannot recover from the defendant if the negligence of the driver was the sole cause of his injuries, yet an instruction so stating should go further and embrace the entire situation, by informing the jury that the driver's negligence cannot be imputed to the occupant in determining whether the driver's negligence was the sole cause of the collision. In the Peppers Case particularly, the court, while condemning the instruction as given, was careful to say that if it had explained to the jury that the negligence of the driver could not be imputed to the plaintiff in determining whether the former's negligence, if any, was the sole cause of the collision, a different situation would have obtained.

It has been repeatedly held that instructions must be read as a whole and as a single charge; that the appellate court cannot assume that the jury did not...