Smuzynski v. East St. Louis Ry. Co.

• Decision Date: 05 May 1936
• Docket Number: No. 23721.,23721.
• Citation: 93 S.W.2d 1058
• Parties: HELEN SMUZYNSKI, RESPONDENT, v. EAST ST. LOUIS RAILWAY COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1058

HELEN SMUZYNSKI, RESPONDENT, v. EAST ST. LOUIS RAILWAY COMPANY, APPELLANT.

No. 23721.

St. Louis Court of Appeals. Missouri.

Opinion filed May 5, 1936.

Appeal from the Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

REVERSED.

Lashly, Lashly & Miller for appellant.

(1) The court erred in refusing to give defendant's peremptory instruction offered at the close of all of the evidence, because the proof did not establish any actionable negligence directly causing the injury. (a) The evidence established that the injury was not the proximate cause of any negligence of defendant, but of an intervening agency over whom defendant had no control. Madden v. Red Line Service, Inc., 76 S.W. (2d) 435; Lacks v. Wells, 44 S.W. (2d) 154; Haley v. St. Louis Transit Co., 179 Mo. 30; Cobble v. Railway Co., 38 S.W. (2d) 1031; Cain v. Hume Deal, 49 S.W. (2d) 90. (b) It is not negligence to cause a passenger to alight at a place other than the customary stopping place which is physically safe, so far as confirmation of the highway is concerned, and only made dangerous by the movement of traffic thereon, such dangers, if any, being natural with a highway and of which all are cognizant. Lacks v. Wells, 44 S.W. (2d) 165, and cases cited therein; Downs v. Northern State Power Co., 200 Wis. 401, 228 N.W. 471; Morris v. Omaha & C.B. Ry. Co., 193 Iowa, 616; Lungren v. Puget Sound, etc., 253 Pac. 791; Wagner v. New Orleans P.S. Co., 120 So. 72; Cleveland Ry. v. Arrison, 195 N.E. 580; Low v. Harrisburg R.R. Co., 290 Pa. 365, 138 Atl. 852; Scherer v. Philadelphia R.P. Co., 163 Atl. 76; Terre Haute v. Evans, 161 N.E. 671; Louisville Ry. v. Saxton, 298 S.W. 1105. (c) Because it is not the duty of defendant to protect a person from the hazards of traffic upon a highway. Lacks v. Wells, supra, and cases therein cited; Downs v. Northern States Power Co., 200 Wisc. 401, 228 N.W. 471, and cases cited therein. (2) The court erred in refusing to give defendant's instructions B (Abs., p. 47) and H (Abs., p. 50). See citations of authorities under 1 (a). (3) The court erred in refusing to give defendant's instruction G (Abs. p. 49). Plaintiff had the burden of establishing that negligence charged was the proximate cause of her injuries, and defendant was entitled to this instruction. Cobble v. St. Louis S.-F. Ry. Co., 38 S.W. (2d) 1031, l.c.; Alabama Power Co. v. Bass, 119 So. 628, l.c. (4) The court erred in not giving defendant's instruction J (Abs., p. 51). (a) Defendant was deprived of its defense of contributory negligence by refusal of this instruction which presented that issue properly. Sullivan v. Schauvenet, 186 S.W., l.c. 1093; DaPron v. Neu, 43 S.W. (2d) 915; Northam v. United Railways Co., 176 S.W. 227; Harris v. R.R. Assn., 203 Mo. App. ___; Root v. Quincy, etc., R.R., 237 Mo. 640. (b) A general plea of contributory negligence, if not attacked properly, is sufficient to form the basis for proper instructions justified by the evidence. Conduit v. Trenton Gas & Elec. Co., 31 S.W. (2d) 21; Watts v. Mousette, 85 S.W. (2d) 487; State ex rel. v. Daues, 6 S.W. (2d.) 893. (5) The court erred in giving plaintiff's instruction No. 1 (Abs., p. 42). (a) Failure to warn of the dangers of traffic upon a highway cannot form the basis of negligence of a motorman. See citations of authority under point 1 (b); Oddy v. West End Ry. Co., 178 Mass. 341; Kentucky Traction Co. v. Sofer, 286 S.W. 776. (b) Because said instruction assumes an essential and controverted fact. Glazer v. Rothschild, 221 Mo. 180; Kursulor v. Boehmer Coal Co., 237 S.W. 887; Hengelsberg v. Cushing, 51 S.W. (2d) 187; Reel v. Consolidated Inv. Co., 236 S.W. 43; Althage v. Peoples Motorbus Co., 8 S.W. (2d) 924. (6) The court erred in not discharging the jury for prejudicial argument, not supported by the evidence, when such remarks were persisted in after objection. Arnsinger v. Najim, 73 S.W. (2d) 214; Beer v. Martel, 55 S.W. (2d) 482; Hankins v. Railway, 31 S.W. (2d) 596; Jackman v. St. L. & H. Ry. Co., 206 S.W. 244; Rooke v. Doering, 247 S.W. 1017; Williams v. Columbia Taxicab Co., 241 S.W. 970. (a) A carrier is not an insurer of the safety of a passenger. Craig v. R.R., 142 Mo. App. 314; Lacks v. Wells, 44 S.W. (2d) 154.

Louis E. Miller and Wm. C. McLaughlin for respondent.

(1) The court properly overruled the defendant's demurrer and the defendant's peremptory instruction offered at the close of the plaintiff's case and at the close of all of the evidence because the evidence offered and received made and constituted a submissible case. (a) Where a motorman stops a street car during a hard rain, in the nighttime, in the middle of the block, and upon a state highway located about two or three feet from the street car and directs the passenger to alight at the left front side of the street car, and upon a traveled portion of the highway, while an automobile is approaching in close proximity to the passenger, without warning the passenger of the presence and approach of the said automobile, and without warning the passenger that she is being discharged in the middle of the block, and of the dangers incident to her alighting at said place, is such actionable negligence as to make a submissible case. Lacks v. Wells, 44 S.W. (2d) 154, l.c. 159; Cossitt v. St. Louis & Suburban Ry. Co., 224 Mo. 97; Gott v. Kansas City Rys. Co. (Mo.), 224 S.W. 827; Caley v. Kansas City, etc., 48 S.W. (2d) 25; Payne v. Davis (Mo.), 252 S.W. 57; Dye v. Railroad, 135 Mo. App. 255; MacDonald v. St. Louis Transit Co., 108 Mo. App. 375; Reardon v. Railroad Co., 215 Mo., l.c. 127; Gage v. St. Louis Transit Co., 211 Mo. 139; Warden v. Missouri Pacific, 35 Mo. 631; McGee v. Missouri Pacific Ry. Co., 92 Mo. 208. (2) The court did not err in refusing to give defendant's instructions B and H. (See cases cited under I-a). (3) The court did not err in refusing to give defendant's instruction G. It is not error to refuse to give an instruction consisting of nothing more than an effort to submit, in negative form, the facts covered by plaintiff's principal instruction. Best v. Atchison T. & S.F. Railroad Co., 76 S.W. (2d) 442, l.c. 444; Doody v. California Mills Co. (Mo.), 216 S.W. 531; Anderson v. Davis, 314 Mo. 515, 284 S.W. 439, 454. (4) The court did not err in refusing to give defendant's instruction J. Where pleading and evidence raise no issue as to contributory negligence it is not error to refuse an instruction relating thereto. Lyons v. Wells, 270 S.W. 129; Harrington v. Dunham, 202 S.W. 1066; Columbia Taxicab Co. v. Raemmich, 208 S.W. 859. (5) The court did not err in giving plaintiff's instruction No. 1. (See citations of authorities under Point I.) (a) Said instruction does not assume an essential and controverted fact. (6) The argument of respondent's counsel was clearly within the evidence and the inferences properly deduced therefrom and the court did not err in refusing to discharge the jury on account thereof. (a) Counsel may assume in his argument that all facts testified to by his witnesses are proven and to draw his own inferences from the testimony. Davis v. Wells et al., 27 S.W. (2d) 714, l.c. 716; Atkinson v. United Railway Co., 286 Mo. 634, 228 S.W. 483; Hankins v. St. Louis-San Francisco Ry. Co., 31 S.W. (2d) 596, l.c. 600. (b) It is discretionary with the trial court as to what action should be taken relative to counsel's alleged improper remarks in argument and a large discretion is allowed the trial court in correcting such errors as may occur in the course of a trial. Hankins v. St. Louis-San Francisco Ry. Co., 31 S.W. (2d) 596, l.c. 600; City of Kennett v. Construction Co., 273 Mo. 279, 294-95, 202 S.W. 558; State ex rel. St. Louis-San Francisco Ry. Co. v. Cox, 46 S.W. (2d) 849, 329 Mo. 292. (c) Defendant cannot, for the first time on appeal, object to plaintiff's counsel's argument to the jury. Smith et al. v. Ohio Millers Mutual Fire Insurance Company, 49 S.W. (2d) 42, l.c. 46.

HOSTETTER, P.J.

This suit was begun on the 19th day of February, 1932, in the Circuit Court of the City of St. Louis, Missouri. The petition seeks a recovery from the defendant railway company growing out of an accident on the night of January 11, 1931, whereby plaintiff was injured by being struck by an automobile in the 4100 block on Bond Avenue, after leaving defendant's street car on which she had been a passenger. The place of accident was a short distance east of the corporate limits of East St. Louis, Illinois. Bond Avenue runs east and west and the street car from which plaintiff alighted was going eastwardly on Bond Avenue which is about forty feet wide from curb to curb. The width of the concrete slab on each side was about ten feet, and the cinder or dirt portion in the center of the street was about twenty feet wide. The street car track in the middle of the cinder portion was about five feet wide. Both concrete slabs were very much used by vehicular traffic. The plaintiff lived at 4137 Bond Avenue on the north side of the street, which was at about the middle of the block. The automobile which struck and injured plaintiff was westward bound, and, consequently, was being driven on the ten foot concrete slab on the north side of Bond Avenue.

The amended petition, being the one on which the case was tried, after setting out the incorporation of the defendant and its ownership, control and operation of the street car and street railway referred to, set out in substance the following as to the manner in which the injuries were received and the negligence imputed to defendant. (We omit a description of the injuries.)

It was averred that on or about the 11th day of January, 1931, plaintiff was a passenger lawfully in and upon a certain Alta Sita street car which was being operated eastwardly on Bond Avenue in the city of East St. Louis, Illinois; that at said time and place the night was exceedingly dark and a great and heavy rain was falling and that as said...