Sherman v. United Railways Company of St. Louis
| Citation | 214 S.W. 223,202 Mo.App. 39 |
| Parties | ISRAEL SHERMAN, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant |
| Decision Date | 19 June 1919 |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. James E. Withrow, Judge.
Judgment affirmed.
T. E Francis, R. E. Blodgett and Chauncey H. Clarke for appellant.
(1) The court erred in refusing to give the jury an instruction in the nature of a demurrer to the evidence, requested by defendant, for the reason that plaintiff made no showing which entitled him to have the case submitted to the jury on any theory of negligence pleaded in the petition. The evidence did not warrant a recovery under the theory of secondary negligence or the "last chance" doctrine for the reason that there was no showing made that such alleged negligence was the proximate cause of the collision. (a) There was no showing made that the car could have been stopped in time to have averted the collision, traveling at the speed it was, after plaintiff entered the "danger zone," that is, got within two or three steps of the track. Kinlen v. Metropolitan St. Ry. Co., 216 Mo 145, 164; Keele v. Atchison, etc. R. Co., 258 Mo. 62, 79; Baecker v. Mo. Pac. Railroad, 240 Mo. 507, 521; Hamilton v. Railroad, 250 Mo. 714, 722; McGee v. Railroad, 214 Mo. 530, 543. (b) Even if the evidence adduced by plaintiff was sufficient to show that the motorman, by the exercise of ordinary care, could have stopped the car in time to have averted the collision after the decedent entered the "danger zone," nevertheless plaintiff was not entitled to recover, for the reason that the evidence conclusively shows that decedent knowingly placed herself in a place of danger and knowingly or willfully permitted the car to strike her, and hence the motorman's failure to stop the car in time to avoid the collision was not the proximate cause of decedent's death for the reason that decedent's act in knowingly and willfully going onto the track in front of the car constituted negligence on her part of such kind, character or degree as to constitute it recklessness or wantonness, and under such circumstances her negligence concurred with that of defendant, barring recovery. Moore v. Lindell Ry. Co., 176 Mo. 528, 539, 542; Van Dyke v. Mo. Pac. Ry. Co., 230 Mo. 259, 285; Steele v. Kansas City, etc., Ry. Co., 265 Mo. 97, 110; Kinlen v. Metropolitan St. Ry. Co., 216 Mo. 145, 164; Gettys v. St. Louis Transit Co., 103 Mo.App. 564, 571; Knapp v. Dunham, 195 S.W. 1062; Williamson v. Wabash Ry. Co. , 139 Mo.App. 481, 492. Plaintiff was not entitled to recover under either theory of primary negligence pleaded, namely, failure to keep a lookout, failure to give warning, or excessive speed, for the reason that such primary negligence of defendant was not the proximate cause of decedent's death, because it was remote in the claim of causation, for subsequent thereto decedent knowingly ran onto the track in front of the car when she could have stayed off the track and avoided the consequences of defendant's negligence, and hence her intervening negligence was the direct and proximate cause of her death. Moore v. Lindell Ry. Co., 176 Mo. 528, 539, 542; Van Dyke v. Mo. Pac. Ry. Co., 230 Mo. 259, 285; Steele v. Kansas City, etc., Ry. Co., 265 Mo. 97, 110; Kinlen v. Metropolitan St. Ry. Co., 216 Mo. 145, 164; Gettys v. St. Louis Transit Co., 103 Mo.App. 564, 571; Knapp v. Dunham, 195 S.W. 1062; Williamson v. Wabash Ry. Co., 139 Mo.App. 481, 492. (2) The court erred in admitting, over defendant's objection thereto, plaintiff's testimony that he had four minor children, for the reason that plaintiff's measure of damages was his reasonable pecuniary injury or the reasonable pecuniary value to him of decedent's services, without regard to the number of the recipients of her services. Such evidence could have no bearing on the case whatever, lest it be to increase the amount of damages, and hence was prejudicial to defendant McNamara v. Slavens, 76 Mo. 329, 330; Stephens v. Hannibal & St. Joseph Ry. Co., 96 Mo. 207, 214; Dayharsh v. Hannibal & St. Joseph Ry. Co., 103 Mo. 570, 577; Hecke v. Dunham, 192 S.W. 120, 121; Lynch v. Rosemary Mfg. Co., 167 N.C. 98, 83 S.E. 6, 8; Bradley v. Ohio R. & C. R. Co., 122 N.C. 972, 30 S.E. 8; O'Melia v. K. C., St. Joseph & Council Bluffs R. Co., 115 Mo. 205, 222. (3) The court erred in giving instruction No. 1 on behalf of plaintiff, which hypothesized the alleged failure to keep a vigilant watch and directed a verdict for plaintiff if the jury found that the motorman failed to keep such watch, for the reason that such primary negligence was not the proximate cause of the collision, for subsequent to this primary negligence of defendant, decedent's own negligence in knowingly going onto the track in front of the car intervened and was the direct and proximte cause of her death. Moore v. Lindell Ry. Co., 176 Mo. 528, 539, 542; Van Dyke v. Mo. Pac. Ry. Co., 230, 259, 285; Steele v. K. C., etc. Ry. Co., 265 Mo. 97, 110; Kinlen v. Metropolitan St. Ry. Co., 216 Mo. 145, 164; Gettys v. St. Louis Transit Co., 103 Mo.App. 564, 571; Knapp v. Dunham, 195 S.W. 1062; Williamson v. Wabash Ry. Co., 139 Mo.App. 481, 492.
Holland, Rutledge & Lashly and Louis J. Portner for respondent.
(1) The demurrer to the evidence was properly refused. The evidence discloses a clear case of negligence upon the part of defendant's motorman. Donahue v. Ry. Co., 83 Mo. 560, 563; Clark v. Famous Shoe & Clothing Co., 16 Mo.App. 463; Williams v. U. S. Incandescent Lamp Co., 173 Mo.App. 87; Eversole v. Ry. Co., 249 Mo. 541; Ry. Co. v. Liderman, 187 Ill. 463, 52 L. R. A. 655 (exactly in point); Eckert v. Railway Co., 43 N.Y. 503; Pa. Co. v. Langendorf, 48 Ohio St. 316, 13 L. R. A. 190; Railway Co. v. Orr, 121 Ala. 489; Walters v. Denver Consol. Elec. Co., 12 Colo.App. 145, 150; Gulf Railroad v. Brooks, 132 S.W. 95; International Railway Co. v. McVey, 81 S.W. 991, 998. See cases cited in 27 L. N. S. 1609, et seq., notes; 49 L. R. A. 715, et seq., note. (a) The danger zone for the two-year-old child involved in this case began the instant it left the sidewalk headed for the car track. Cornovski v. Transit Co., 207 Mo. 263; Cytron v. Railroad Co., 205 Mo. 719; Simon v. Railway Co., 231 Mo. 65, 75; Turnbow v. Dunham, 272 Mo. 53, 67. (2) No error was committed in receiving testimony as to the number and ages of the children of plaintiff, where it is shown that deceased was the wife of plaintiff and was living at home, doing all of the housework and caring for and ministering to their minor children. These facts were material, along with all of the other facts tending to demonstrate to the jury the strength, capability, willingness to work and the services habitually performed by the deceased for the plaintiff, from which the jury might deduce and form a judgment as to what her probable service in future would have been had she lived. Lindsey v. Railroad Co., 178 S.W. 280; Boyd v. Railroad Co., 249 Mo. 126; Latimer v. Railway Co., 126 Mo.App. 79, 76-77; Bradley v. Railroad Co., 122 N.C. 972, 974 (concurring opinion). (3) There is no valid complaint due appellant upon the subject of instructions, as the instructions given by the court upon the subject of care and contributory negligence are more favorable than it was entitled to have and imposes a greater burden upon the plaintiff here than is warranted by the "hero doctrine" of law. Eckert v. Railroad Company, 43 N.Y. 502; Railway Co. v. Liderman, 187 Ill. 463; Donahue v. Railroad Company, 83 Mo. 560. (a) Appellant is not entitled to prosecute any exceptions to instructions given in this case, as there is no specific direction to error in this respect contained in its motion for new trial. Kansas City Trunk Company v. Bush, 208 S.W. 625; State v. Sanders, 271 Mo. 81, 94-95-96; Disinfecting Company v. County, 273 Mo. 300; Wynne v. Undertaking Company, 204 S.W. 15; Lamp v. United Railways Co., 202 S.W. 438; Dairy Co. v. Bottle Company, 204 S.W. 281, 284; Seitz v. Pelligreen, 203 S.W. 503; Nitchman v. United Railways Co., 203 S.W. 491. (4) Upon the whole record it is apparent that the plaintiff ought to recover and the judgment was manifestly for the right party and should, therefore, be affirmed. Shinn v. Railroad Co., 248 Mo. 182; Peterson v. Transit Co., 199 Mo. 344; Noble v. Blount, 77 Mo. 239; Haehl v. Railroad Co., 119 Mo. 344; Fox v. Windes, 127 Mo. 514; McFarland v. Heim, 127 Mo. 335; Sherwood v. Railroad Co., 132 Mo. 339; Schuepbach v. Gas Co., 232 Mo. 612.
This is an action brought under section 5425, Revised Statutes 1909, to recover damages for the death of plaintiff's wife, alleged to have been caused by the negligence of the defendant street railway company in the operation of one of its cars in the city of St. Louis.
The petition, after certain formal allegations, alleges that on April 5, 1915, the defendant operated one of defendant's street cars southwardly over its track on North Fourteenth street, in the city of St. Louis, and through the negligence and carelessness of its said agents and servants, operating the same, caused the car to strike and collide with plaintiff's wife, Rose Sherman, knocked her to the street, and caused the car to run upon her, inflicting injuries from which she died within a few minutes thereafter.
And it is alleged that the striking of plaintiff's wife by said car was directly due to the negligence and carelessness of defendant, through its agents and servants, in operating the car, in that defendant's said agents and servants negligently "failed to keep and maintain a vigilant watch for the said Rose Sherman, a pedestrian upon the street moving toward the car track aforesaid so as...
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