Sisk v. Industrial Track Construction Company

• Decision Date: 09 April 1927
• Parties: James Sisk, Appellant, v. Industrial Track Construction Company
• Court: Missouri Supreme Court

295 S.W. 751

316 Mo. 1143

James Sisk, Appellant, v. Industrial Track Construction Company

Supreme Court of Missouri

April 9, 1927

Appeal from Circuit Court of City of St. Louis; Hon. J. Hugo Grimm, Judge.

Affirmed.

Louis J. Robinson and Earl M. Pirkey for appellant.

(1) Instruction 4 directed a verdict for defendant if the plaintiff was guilty of negligence which contributed to cause his injuries. This was erroneous for the reason that contributory negligence, to be a defense, must directly contribute to cause the injury, and an instruction embodying the defense of contributory negligence is erroneous unless it uses the words "directly contributed." Howard v. Scarritt Estate, 267 Mo. 402; Moffatt v Link, 207 Mo.App. 668; Conrad v. Hamra, 253 S.W. 811; Oates v. Met. St. Ry. Co., 168 Mo. 548; Moore v. Rapid Transit Co., 126 Mo. 277; Meyer v. Railroad, 40 Mo. 156; Davis v. Spicer, 27 Mo.App. 301. (2) The instruction is also erroneous because not supported by the evidence. (2) The court erred in excluding the testimony of Witness Donohue as to the speed of the truck. This was done on the theory that he was not sufficiently qualified. He testified that he had ridden in automobiles and had observed them running about the streets for about twenty-five years and had driven a horse and wagon for some years. He was therefore qualified to testify and the exclusion of his testimony was erroneous. State v Watson, 216 Mo. 433; Burk v. Shaw Transfer Co., 211 Mo.App. 363. (3) The petition charged as a distinct assignment of negligence that defendant negligently caused and permitted the truck and trailer to strike the wagon. Instruction 3 eliminated this charge and is therefore erroneous. (4) Instruction 3 requires a finding for defendant if the truck passed the wagon in safety and there was sufficient clearance between the truck and wagon for the trailer to pass the wagon. This is erroneous, because if the trailer was turned by the truck so that it ran into the wagon then the defendant would be liable. (5) Instruction 4 required the plaintiff to prove to the satisfaction of the jury and by a preponderance or greater weight of the evidence that he was injured and these injuries were directly caused by the negligence of the defendant. This instruction requires plaintiff to prove his case by more than a preponderance of the evidence, to-wit: by a preponderance of the evidence and to the satisfaction of the jury. It was therefore erroneous to give it. Krause v. Spurgeon, 256 S.W. 1072.

Jones Hocker, Sullivan & Angert for respondent.

(1) There was no error in giving Instruction 4 at the request of defendant. (a) On the facts in this case there was no room for the application of the last-chance doctrine. Moore v. Lindell Ry. Co., 176 Mo. 529, 544; Ries v. Transit Co., 179 Mo. 1; Shanks v. Traction Co., 101 Mo.App. 707; Lackey v. United Rys. Co., 288 Mo. 144; Petty v. Railroad, 179 Mo. 666. (b) Plaintiff offered no instruction on the last-chance doctrine; mere non-direction is not error. Monsanto Chemical Works v. American Zine Co., 253 S.W. 1010; Powell v. Railroad, 255 Mo. 420; Brown v. Box Co., 243 S.W. 330; Sutter v. Railway, 188 S.W. 68; Weber v. Strobel, 194 S.W. 275. (c) Instruction 4, read as a whole, properly submitted the question of plaintiff's contributory negligence. Kennayde v. Railroad, 45 Mo. 258; Whalen v. Railway Co., 60 Mo. 326. (d) The word "direct" need not precede the word "contributory" where on the facts hypothesized in the instruction the plaintiff's negligence must have contributed "directly," because the conclusion follows as a matter of law. Carr v. City of St. Joseph, 225 S.W. 923; Calloway Bank v. Ellis, 238 S.W. 844; Monsanto Chemical Works v. American Zinc Co., 253 S.W. 1010. (2) There was no error in excluding the testimony of Witness Donohue on the question of speed. (a) Assuming the qualification of the witness the inquiry was immaterial. Helm v. Mo. Pac. Ry. Co., 185 Mo. 222-223. (b) On the evidence the collision occurred either from the failure of defendant's driver to allow sufficient clearance in the first instance or from the negligence of plaintiff in turning his vehicle to the left before the trailer has passed him. The speed of defendant's truck, therefore, could have had nothing to do with the collision. Evans v. Railroad, 289 Mo. 493; Monroe v. Railroad, 297 Mo. 633; Helm v. Railroad, 185 Mo. 212. (c) Donohue was illy qualified, if at all, and his guess as to the rate of speed would have been of no value to the jury. McCreery v. Railway, 221 Mo. 28; Campbell v. Railroad, 175 Mo. 177; Petty v. Railroad, 179 Mo. 671; Statler v. Railroad, 200 Mo. 125; Muth v. Railway, 87 Mo.App. 434. (3) Instruction 3 properly stated the law and there was no error in giving it at defendant's request. (a) There was no allegation in plaintiff's petition that defendant negligently turned the truck or trailer to the right as it passed the wagon. (b) There was no proof that the truck or trailer was suddenly "turned to the right." (c) There was no error in failing to incorporate plaintiff's hypothesis; if he wished to present the case to the jury on the hypothesis that the truck or trailer "suddenly turned to the right" he should have offered an instruction to that effect. Ward v. Fessler, 252 S.W. 667; Jones v. Railway, 287 Mo. 64; Lampe v. Railway, 177 Mo.App. 652.

OPINION

Walker, J.

This is an action for personal injuries alleged to have been sustained by the plaintiff in a collision between a horse-drawn wagon, driven by plaintiff, and a truck, operated by the defendant, which had a trailer attached thereto.

The plaintiff alleged that he was driving along a public way in the city of St. Louis when the defendant's truck and trailer came up behind him and was negligently permitted to bump into his wagon, whereby he was thrown from his seat and injured. The answer of the defendant was a general denial, and a plea of contributory negligence in that the plaintiff had negligently driven his horse and wagon into the path of the trailer after the truck had passed him and thereby brought about the collision. The reply was a general denial. There was a judgment for the defendant and plaintiff appeals.

The collision occurred on the levee in the city of St. Louis. Although occupied by railway tracks, this levee is paved for use as a highway, and is so used by vehicles. The plaintiff was driving a one-horse wagon, the wheels of which were in the railway tracks. He says the truckman blew a horn, whereupon he looked back and saw the truck following him in the same tracks. He turned his face to the front and his wagon was at once struck. He was uncertain whether the truck or the trailer collided with his wagon, but was inclined to think it was the truck. He was also uncertain whether it was a front or rear wheel of his own wagon which was struck, but said it was one or the other. He was thrown from his seat, but not from his wagon, by the collision, and received the injuries of which he complains.

There were two men on the truck -- the driver, who sat in the cab looking ahead, and another employee, who sat behind the cab facing the rear. The former testified that he was following the plaintiff up the railroad track; that he blew his signal for plaintiff to pull out and let him pass; that the plaintiff pulled out to the right of the tracks, leaving room for the truck to pass safely; that while he was passing the plaintiff's wagon and after the truck had passed it, his companion called to him to stop, which he did at once. He then found that the hub of his trailer had struck one of the hubs of the wagon. The plaintiff declined help on the ground that he was not injured and they each drove on.

The other occupant of the truck said that when the driver sounded the signal he looked forward and saw the plaintiff's horse and wagon pull out, and the truck passed it with the truck and trailer following the railroad track; that the truck passed the wagon in safety, whereupon the plaintiff, apparently oblivious that the trailer was following, pulled in again as though to come back upon the track, whereupon the hub of the trailer struck the hub of the wagon. He called to the driver to stop, which he did. The plaintiff declined to be taken to a doctor and drove off.

There was testimony that the ills the plaintiff complained of were due to a chronic disease with which he was afflicted and other accidents which he had suffered rather than to this collision.

The plaintiff asked no instructions in his own behalf, but complains of those given for the defendant.

I. We will consider the assignments of error in their order as stated by the appellant. It is contended that Instruction Number Four, which directed a verdict for the defendant if the plaintiff was guilty of negligence which caused his injuries, was error. This instruction is as follows:

"The court instructs the jury that if you find and believe from the evidence in this case that while plaintiff was driving north on the levee in the railroad track mentioned in the evidence, he drove his horse and wagon to the right and east of and beyond the railroad track mentioned in the evidence for the purpose of permitting defendant's truck to pass plaintiff's horse and wagon, and if you further find and believe from the evidence that defendant's chauffeur attempted to pass plaintiff's horse and wagon on the left, and at the time there was sufficient clearance to safely pass plaintiff's horse and wagon without contact or collision between the truck or trailer and plaintiff's horse and wagon; and if you further find that while defendant's truck was passing plaintiff's horse and wagon, and before the trailer had passed said horse and wagon, plaintiff turned his horse and wagon to the...