State v. Reynolds

• Decision Date: 26 June 1922
• Docket Number: No. 22624.,22624.
• Citation: 295 Mo. 375,244 S.W. 929
• Parties: STATE ex rel. VOGT v. REYNOLDS et al., Judges.
• Court: Missouri Supreme Court

244 S.W. 929

295 Mo. 375

STATE ex rel. VOGT v. REYNOLDS et al., Judges.

No. 22624.

Supreme Court of Missouri, in Banc.

June 26, 1922.

Motion for Rehearing" Denied October 9, 1922.

Certiorari by the State, on the relation of Oscar Vogt, against George D. Reynolds and others, Judges of St. Louis Court of Appeals, to quash opinion and judgment in case of Oscar Vogt v. United Railways Co. (Mo. App.) 226 S. W. 75. Record quashed.

J. E. Carroll, of St. Louis, for relator.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis; for respondents.

DAVID D. BLAIR, J.

This is an original proceeding in this court, wherein relator seeks by our writ of cestiorari to quash the opinion and judgment of respondents as judges of the St. Louis Court of Appeals, in the case of Oscar Vogt v. United Railways Co.

We quote from the opinion of respondents as follows:

"This is a suit for damages alleged to have accrued on account of personal injuries received by the plaintiff in a collision of a motor truck (on which plaintiff was riding, but which he was not operating) with one of defendant's street cars, in the City of St. Louis. Judgment resulted in favor of plaintiff for the sum or $3,000, and defendant appeals.

"The petition specifically pleads the last chance doctrine, the vigilant watch ordinance, and the speed ordinance, which fixes the speed of street cars at not exceeding ten miles per hour at the place Where the collision occurred. The answer is a general denial.

"The testimony adduced on behalf of plaintiff and the testimony of the witnesses for defendant upon the essential facts in the case were contradictory; however, there is no question but that there was substantial testimony sufficient to warrant the submission of the case to the jury on the assignments of negligence predicated upon the violation of the vigilant watch ordinance and the speed ordinance.

"Plaintiff's instruction numbered 1, which covers the entire case and directs a verdict, which instruction is hypothesized upon plaintiff's right to recovery on the issue of the violation of the vigilant watch ordinance, must be condemned in that it has been ruled that under the vigilant watch ordinance the defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car by the use of the appliances at hand with safety to the passengers in order to avoid the collision, which said instruction permits a recovery against the defendant if the jury find that the motorman could have avoided colliding with the automobile truck upon which the plaintiff was riding after the motorman saw, or by the exercise of ordinary care could have seen, the truck upon which plaintiff was riding in danger of being struck by said car, by stopping the car, `within the shortest time and space possible under the circumstances, with due regard for the safety of the said car and the passengers thereon.'"

The opinion of respondents refers to, but does not se; out, plaintiff's instruction number 1. We will therefore look to the record before the St. Louis Court of Appeals and examine said instruction in this proceeding as set out in said record, the same as we would if it had been set out in the opinion before us. State ex rel. Kansas City v. Ellison, 281 Mo. 037, 220 S. W. 498. Said instruction, after setting out the substance of the vigilant watch ordinance, reads as follows:

"* * * The court further instructs the jury that if you find and believe from the evidence that on the 17th day of April, 1914, the plaintiff was riding on the automobile truck mentioned in the evidence and that said automobile truck was moving either on or towards the defendant's street car track on O'Fallon street at or near the intersection of said O'Fallon street with Thirteenth street; that while said automobile truck was so moving towards or upon the defendant's said track, a car of the defendant approached on said track from the east, and that the motorman of the defendant operating said car, by keeping a vigilant watch for vehicles moving towards or upon the defendant's said track, would and could have seen the said truck, upon which the plaintiff was riding, moving towards or upon the defendant's track, and in danger of being struck by said car, and that thereafter, by stopping said car within the shortest time and space possible under the circumstances, with due regard for the safety of the said car and the passengers thereon, would and could have avoided colliding with the said automobile truck and injuring the plaintiff, yet failed and neglected to do so, and that the said act of the defendant's motorman in failing to keep such vigilant watch, if you find he did so fail to do, directly caused the injuries to `Plaintiff mentioned in the evidence, then your verdict must be for the plaintiff."

The respondents' opinion refers to the contents of the petition upon which the case was tried in the circuit court, but does not set the same out in full. By examining such petition as set out in the record before the St. Louis Court of Appeals, we find that there is pleaded in said petition as a ground for recovery a violation by the defendant of a portion of section 2380 of Ordinance No. 26653, approved November 9, 1912, as follows:

"Sec. 2380. Subdivision Fourth. The conductor, motorman, gripman, driver or any other person in charge of each car shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles the car shall be stopped in the shortest time and space possible."

Relator contends that respondents' opinion, the essence of which is above quoted, is in conflict with the following controlling opinions of this court, to wit: Gubernick v. United Railways (Mo. Sup.) 217 S. W. 33 loc. cit. 35; Esstman v. United Railways (Mo. Sup.) 216 S. W. loc. cit. 528; Spencer v. United Railways, 222 Mo. loc. cit. 323, 324, 121 S. W. 108; White v. Railroad, 202 Mo. loc. cit. 555, 564, 101 S. W. 14; Eckhard v. Transit Co., 190 Mo. loc. cit. 605-021, 89 S. W. 802; Sluder v. Transit Co., 189 Mo. 107, lac. cit. 136, 88 S. W. 648, 5 L. R. A. (N. S.) 186: Riska v. R. R. Co., 180 Mo. 108, 79 S. W. 445; and Hovarka v. Transit Co., 191 Mo. loc. cit. 454, 455, 90 S. W. 1142.

The question for our determination is whether respondents' opinion is in conflict with controlling decisions of this court, by reason of the holding in said opinion that relator's instruction 1 was erroneous, because the jury was not told therein that defendant was only responsible for the failure of its motorman to exercise ordinary care to stop the car within the shortest time and space ;possible, etc. Relator's instruction 1 places upon defendant the duty stop the car within the shortest time and space possible under the circumstances, with due regard for the safety of the car and the passengers thereon, and does not define the degree of care to be exercised by the motorman in so doing. Otherwise stated, the question is whether an instruction substantially in the language of the ordinance is sufficient under the latest controlling decision of this court or whether our decisions have laid down the rule that the motorman is only required to exercise ordinary care to stop the car within the shortest time and space possible under the circumstances.

Respondents hold in their opinion that under the rule laid down by this court in the case of Sluder Transit Co., 189 Mo. 107 88 S. W. 648, R. A. (N. S.) 186, the instruction was erroneous and must be condemned because the defendant is only responsible for the failure of its motorman to exercise ordinary care to stop the car, etc. Relator contends that respondents' opinion must be quashed because it is in conflict with the Sluder Case, and does not in fact follow that case, and also in conflict with other cases decided by this court. It was contended in the Sluder Case that the vigilant watch ordinance "exacts a higher degree of diligence and care than the common-law rule of ordinary care, and imposes a harsher one, and for that reason. Is not in harmony with the general laws of the state, and hence void." Judge Gantt said:

"This objection to the ordinance in question was urged by the same learned counsel in the St. Louis Court of Appeals in Sepetowski v. Railroad, 102 Mc. App. 119, but that court held that `properly construed it is but declaratory of the common-law duty of corporations operating street railways in populous cities,' and that conclusion is in harmony with the decision of this court. [Riska v. Railroad, 180 Mo. 168.] * * *

The same principal is enunciated in Holden v. Railroad, 177 Mo. 456, wherein the rule announced in Ricks v. Railroad, 64 Mo. loc. cit. 439, that in running through towns and cities, and over public crossings, they are expected to be more careful than at other places where not so likely to injure persons or property,' is approved as was the rule announced in Frick v. Railroad, 75 Mo. loc. cit. 609, to the effect that `a less degree of vigilance will ordinarily be required between the streets of a town or city, than will be required at a street crossing, or when running longitudinally in a street.' Indeed, so apparent is the duty of the driver or motorman in charge of cars moving on the rapid transit lines maintained by street car companies, to keep a constant and vigilant lookout for persons and vehicles, that a failure to do so would be regarded as negligence and a failure to exercise ordinary care in the absence of an ordinance."

Judge Gantt then proceeds:

"Cur conclusion is that this ordinance * * * exacts no more than ordinary care, when the conditions and circumstances to which it is applicable are considered, and that a breach of its requirements is negligence."

The opinion of respondents is not in conflict with what was actually said by Judge Gantt in disposing of the Sluder Case. It...