Smith v. Wells

• Decision Date: 14 October 1930
• Parties: William H. Smith, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis
• Court: Missouri Supreme Court

31 S.W.2d 1014

326 Mo. 525

William H. Smith, Appellant, v. Rolla Wells, Receiver of United Railways Company of St. Louis

Supreme Court of Missouri

October 14, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Henry A Hamilton, Judge.

Affirmed.

Everett Hullverson and Mark D. Eagleton for appellant.

(1) It was error to give Instruction No. 4 on the part of the defendant, because it was erroneous in the following respects: (a) It assumed facts not in evidence. Althage v. Peoples Bus Co., 8 S.W.2d 924; Lewis v. Public Service Co., 17 S.W.2d 361; Nabe v. Schnellman, 254 S.W. 734, par. 7; Goodwin v. Eugas, 236 S.W. 53. (b) It is in conflict with plaintiff's instruction on the humanitarian doctrine. Shumate v. Wells, 9 S.W.2d 632. (2) It was error to give Instruction No. 3 on the part of the defendant, because it was erroneous in the following respects: (a) It was a comment on the evidence and, by implication, assumes that the driver of the machine in which plaintiff was riding drove from a place of safety onto the car tracks. Lewis v. Public Service Co., 17 S.W.2d 361, par. 1; McKean v. National Casualty Co., 270 S.W. 713, par. 11; Burgess v. Garvin, 272 S.W. 116 par. 18; Laible v. Wells, 296 S.W. 428; Seithel v. Dairy Co., 300 S.W. 280. (b) It was in conflict with plaintiff's Instruction 2 on the Vigilant Watch Ordinance, and is an incorrect statement of the law. State ex rel. Vogt v. Reynolds, 244 S.W. 929; Schroeder v. Wells, 276 S.W. 60; Hale v. Ry Light, Heat & Power Co., 230 S.W. 113; Grossman v. Wells, 282 S.W. 710; Heigold v. Rys. Co., 271 S.W. 773; Gubernick v. Rys. Co., 217 S.W. 33; Abramowitz v. Rys. Co., 214 S.W. 119; Eastman v. Rys. Co., 216 S.W. 526; Dickens v. Wells, 245 S.W. 563; Friedman v. Ry. Co., 254 S.W. 556.

T. E. Francis, E. P. Walsh and Hensley, Allen & Marsalek for respondent.

(1) There was no error in giving Instruction 4. (a) It does not assume any of the facts adverted to therein, but requires the jury to find the existence of such facts. O'Leary v. Steel Co., 303 Mo. 385; Ward v. Ry. Co., 311 Mo. 92; Brown v. Ry. Co., 315 Mo. 409; Agee v. Herring, 298 S.W. 253; Yarde v. Hines, 209 Mo.App. 554. (b) It is in nowise in conflict with plaintiff's Instruction 1 submitting the case under the humanitarian rule. If the jury found the facts hypothesized by Instruction 4 -- which findings were fully warranted by the evidence -- there could be no recovery either under the humanitarian rule or the Vigilant Watch Ordinance. Keele v. Railroad, 258 Mo. 78; Clark v. Ry. Co., 319 Mo. 879; Taylor v. Ry. Co., 256 Mo. 191; Lackey v. Rys. Co., 288 Mo. 143; Roseman v. Rys. Co., 251 S.W. 106; Banks v. Morris, 302 Mo. 254; State ex rel. Siegel v. Daues, 318 Mo. 256. There was no error in giving Instruction 3. (a) It is not objectionable as constituting a comment on the evidence. Irons v. Ry. Express Co., 300 S.W. 283; Ward v. Railroad, 311 Mo. 92; Bradley v. Railway Co., 138 Mo. 293; Garard v. Coal & Coke Co., 207 Mo. 242; Hutson v. Stair Co., 296 S.W. 218. (b) It did not assume that the automobile in which plaintiff was riding was driven from a place of safety into one of danger, but distinctly required the jury to so find. See Authorities, supra. (c) Said Instruction 3 is not in conflict with plaintiff's Instruction 2 submitting the case under the Viligant Watch Ordinance. Instruction 3 properly reckons with the duty enjoined upon the motorman by the ordinance to keep a vigilant watch; and the latter part of the instruction, in authorizing a verdict for defendant if the jury find that "it was then too late for the motorman in the exercise of ordinary care to stop," etc., does not render the instruction in conflict with Instruction 2. Under the circumstances hypothesized, the common law rule of ordinary care, which is always commensurate with the danger, would require the motorman to use every means at hand to stop the car in the shortest time and space possible. State ex rel. Siegel v. Daues, 318 Mo. 256; Logan v. Railroad, 300 Mo. 631; Zumwalt v. Railroad, 266 S.W. 717; Hill v. Rys. Co., 289 Mo. 193; Toomey v. Wells, 310 Mo. 696; Hale v. Ry. L. H. & P. Co., 230 S.W. 119. (3) Assuming, arguendo, that Instruction 3 is in conflict with plaintiff's Instruction 2 submitting the case under the Viligant Watch Ordinance, the giving of Instruction 3 was not prejudicial, for the reason that plaintiff was not entitled to the giving of Instruction 2. (a) Since plaintiff was the owner of the automobile in which he was seated, which was at the time being operated by his wife for him for a purpose in the accomplishment of which plaintiff was interested, his wife was his agent in operating the same, and her negligence was plaintiff's negligence. Lucey v. Allen, 44 R. I. 379, 382; Dauber v. Josephson, 209 Mo.App. 531; Tannehill v. Railroad, 279 Mo. 158; Zandras v. Moffett, 286 Pa. 477; Schofield v. Director General, 276 Pa. 508; Colorado Springs & I. Railroad Co. v. Cohun, 66 Colo. 149; Osthellar v. Railroad Co., 107 Wash. 678; Giorgetti v. Wollaston, 257 Pac. (Cal. App.) 107; Bullard v. El. Ry. Co., 226 Mass. 262; 1 Berry on Automobiles, p. 506, sec. 628, p. 511, sec. 642. (b) The evidence adduced was such as to convict both plaintiff and his wife of contributory negligence as a matter of law, and hence plaintiff was not entitled to the giving of Instruction No. 2 submitting the assignment of negligence predicated upon a violation of the Vigilant Watch Ordinance. Pienieng v. Wells, 271 S.W. 62; Gubernick v. Rys. Co., 217 S.W. 35; State ex rel. Maclay v. Cox, 10 S.W.2d 940; Sullivan v. Railroad, 317 Mo. 996; Cox v. Railroad, 9 S.W.2d 96; Threadgill v. Rys. Co., 279 Mo. 466; Epstein v. Wells, 284 S.W. 845; Zlotnikoff v. Wells, 295 S.W. 129; Moore v. Ry. Co., 176 Mo. 544; Spaunhorst v. Rys. Co., 238 S.W. 820; Evans v. Railroad Co., 289 Mo. 493; Thomas v. Wells, 299 S.W. 72; Chawkley v. Ry. Co., 297 S.W. 26; Alexander v. Railroad Co., 289 Mo. 599; Kinlen v. Railroad, 216 Mo. 145; Laun v. Railroad, 216 Mo. 563; Pope v. Railroad, 242 Mo. 232. (c) Contributory negligence is always a defense to "ordinance negligence," i. e., a charge of negligence based upon the violation of an ordinance. Gubernick v. Rys. Co., 217 S.W. 35; Heigold v. Rys. Co., 308 Mo. 142; Grossman v. Wells, 282 S.W. 713. Since plaintiff was not entitled to the giving of instruction No. 3, no prejudicial error may be predicated upon the giving of an instruction for defendant conflicting therewith. Moore v. Railway Co., 176 Mo. 528; Giles v. Railroad, 278 Mo. 350; Woods v. Railway Co., 187 S.W. 11; Quinn v. St. Ry. Co., 218 Mo. 546; Carr v. Railroad, 195 Mo. 214; Ellis v. St. Ry., 234 Mo. 679.

Seddon, C. Ellison and Ferguson, CC., concur.

OPINION

SEDDON

Plaintiff (appellant here) commenced this action on September 13, 1924, in the Circuit Court of the City of St. Louis, to recover, from the defendant receiver, damages in the sum of $ 15,000 for personal injuries alleged to have been occasioned through the defendant's negligent operation of a street car, resulting in a collision between the defendant's street car and a Ford automobile, owned by plaintiff and operated at the time by plaintiff's wife, said collision occurring on September 6, 1924. A trial and submission of the action to a jury resulted in a unanimous verdict in favor of the defendant. After an unavailing motion for a new trial, plaintiff was allowed an appeal to this court from the judgment entered upon the verdict.

The petition avers, in substance and effect, that on September 6, 1924, plaintiff was riding in an automobile which was proceeding eastwardly along Eichelberger Avenue, a public street in the city of St. Louis, and when said automobile was at or near the intersection of said Eichelberger Avenue with Broadway, another public street in said city, it was then and there, with great force and violence, run into, and collided with, by one of defendant's street cars, directly causing plaintiff to sustain the bodily injuries for which he seeks recovery of damages. The petition charges defendant with negligence in seven respects, but five of the specifications or assignments of negligence were abandoned by plaintiff upon the submission of the cause to the jury, the cause being submitted by plaintiff solely upon the two charges, or assignments, that defendant was negligent in the operation of said street car under the last-chance, or humanitarian, rule and doctrine, and in violating the so-called "Vigilant Watch Ordinance," effective and operative in the city of St. Louis.

The answer is a general denial, coupled with the following pleas:

"For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence directly contributing thereto, in allowing and permitting himself to be driven toward and upon a street railway track and immediately in front of and in close and dangerous proximity to an approaching street car when he 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 the collision.

"For further answer and defense, defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence directly contributing thereto in failing to warn the driver of the automobile in which he was riding when he saw and knew, or by the exercise of ordinary care could have seen and known, that she was driving said automobile toward and upon a street railway track and immediately in front of and in close and dangerous proximity to an approaching street car."

No reply is shown by the record to have been filed by plaintiff but the cause was tried as though a reply, denying generally...