Threadgill v. United Railways Company of St. Louis

• Citation: 214 S.W. 161,279 Mo. 466
• Parties: NINA THREADGILL, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS
• Decision Date: 09 July 1919
• Court: United States State Supreme Court of Missouri

214 S.W. 161

279 Mo. 466

NINA THREADGILL, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS

Supreme Court of Missouri, First Division

July 9, 1919

Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.

Affirmed.

R. P and C. B. Williams for appellant.

(1) The trial court erred in instructing the jury that the driver of the automobile was required to exercise the highest degree of care which a very careful person would exercise under the same or similar circumstances at the time and place mentioned in the evidence before plaintiff could recover. Advance Transfer Co. v. Chicago-Pac. Railroad Co., 195 S.W. (Mo App.) 566; Hopkins v. Sweeney Automobile Co., 196 S.W. (Mo. App.) 772; Nichols v. Kelley, 159 Mo.App. 20; Jackson v. Southwestern Railroad Co., 189 S.W. 381. (2) It was error for the trial court, over the objection of the plaintiff, to permit a witness for the defendant to testify what should have been done and what should not have been done at the time of the accident to bring the driver within the rule of proper conduct. (3) The court erred in permitting a witness for the defendant, over the objection of the plaintiff, to testify that he knew the machine was going to be hit when the driver turned across the street.

T. E. Francis, S. P. McChesney and Chauncey H. Clarke for respondent.

(1) The court did not err in instructing the jury that it was the duty of the operator of the automobile to exercise the highest degree of care which a very careful person would exercise under the same or similar circumstances, since the duty to exercise such care was enjoined upon him by statute. Laws 1911, pp. 326, 327, 330. England v. Southwest Missouri Railway Co., 180 S.W. 34. (2) Appellant's second point, that the court erred in admitting evidence concerning what a careful chauffeur would have done, on the ground that such testimony was not a proper subject of expert testimony, cannot be considered by this court for the reason that no such objection was made in the trial court. Breen v. United Rys. Co., 204 S.W. 522; Kinlen v. Railroad, 216 Mo. 173; Williams v. Williams, 259 Mo. 250; De Maet v. Fidelity Storage Co., 231 Mo. 620; Torreyson v. United Railways Co., 246 Mo. 696. The only objections interposed below were, (a) that the witness was not qualified as an expert, and (b) that all the facts necessary for an expert opinion were not hypothesized. (3) Appellant's third point, that the court erred in permitting a witness to testify that he knew the machine was going to be hit when the driver turned across the street, on the ground that such testimony was a statement of a conclusion, cannot be considered by this court for the reason that no such objection was made in the trial court. Authorities supra; City of Springfield v. Owen, 262 Mo. 104.

GRAVES, J. Blair, P. J., and Bond, J., concur; Woodson, J., absent.

OPINION

GRAVES, J.

Action for personal injuries received whilst riding in an automobile, which ran into a street car operated by the defendant. The petition charges both common law and ordinance negligence. Several ordinances are plead, and the violation thereof assigned as negligence. A recitation of all the alleged negligence will serve no good purpose, as the plaintiff saw fit to abandon all except two theories of recovery, as shown by her requested instructions. Nor under the assignments of error here is it necessary to set out in detail the diverse defenses urged in the answer. Plaintiff's theories of a recovery are found in her requested instructions numbered 1 and 2, which read:

"1. The court instructs the jury that it is admitted that on or about the tenth day of January, 1915, there was in full force and effect in the City of St. Louis, the following ordinance: '3. Whenever any car is about to pass another car going in the opposite direction near a point where it is permissible to passengers to alight from or to board a car, said car shall proceed at a rate of speed not over three miles an hour, and the motorman, driver or person in control shall ring a warning gong or bell.'

"Now if you believe and find from the evidence that at and prior to the time of the collision in question the driver of the automobile in question knew of the existence of said ordinance and the provisions thereof and if the jury further believe and find from the evidence that on the said tenth day of January, 1915, the automobile in which plaintiff was riding was approaching or about to approach the crossing at Union and Vernon avenues going east with the intention of passing over defendant's double tracks and proceeding into Vernon avenue and that while said automobile was so approaching or about to approach said crossing and before the same had proceeded to a place of danger at said crossing, if you so find defendant's said street car in charge of its motorman was also approaching said crossing north on Union Avenue near Vernon Avenue and at such time said street car was about to pass or was proceeding in passing another street car going in the opposite direction on the said Union Avenue and near said Vernon Avenue and near a point where it is permissible to passengers to alight from or board a street car, if you so find, then it became and was the duty of the motorman in charge of defendant's said car going north on said Union Avenue to proceed in passing said street car going in the opposite direction at a rate of speed of not over three miles an hour, and to ring a warning gong or bell; and if you believe and find from the evidence that at such time and place said motorman in charge of said northbound street car ran said car at a rate of speed over three miles an hour, and at such time and place failed to ring a warning gong or bell, then the said motorman was guilty of negligence; and if you so believe and further believe from the evidence that said motorman at said time and place had run his car at a rate of speed of not over three miles an hour, or that said motorman at said time and place had rung a warning gong or bell, said collision would have been averted; and if you further believe and find from the evidence that such negligence, if any, was the direct cause of the said collision and injury, if any, to plaintiff, then your verdict must be for the plaintiff, provided you further believe and find from the evidence that before and at the time of said collision plaintiff exercised care and caution for her own safety.

"2. The court instructs the jury that if you believe and find from the evidence that on or about the tenth day of January, 1915, Union Avenue in the City of St. Louis at its intersection with Vernon Avenue was a public crossing and a place much used for travel by automobiles and other vehicles, and that on said date one of defendant's street cars going north on Union Avenue collided with an automobile in which plaintiff was riding while said automobile was being driven across the double tracks of defendant on Union Avenue to enter Vernon Avenue going east, and that plaintiff was injured in said collision; and if the jury further believe and find from the evidence that while the machine in which plaintiff was riding was approaching the said crossing at Union and Vernon avenues, and before said machine had reached a place of danger at said crossing, if you so find, the defendant's said street car in charge of its motorman was also approaching said crossing going north, and if you further believe and find from the evidence that the said motorman at the said time in so approaching said corner failed to ring any warning gong or bell and failed to exercise ordinary care to have his said car under control so that the same could be stopped on the first appearance of danger to vehicles passing over said crossing, and that such failure so to do under the circumstances, if you so find, was negligence, and that such negligence, if any, was the direct cause of the said collision and injury, if any, to plaintiff, then your verdict must be for the plaintiff, provided you believe and find from the evidence that before and at the time of said collision plaintiff was in the exercise of ordinary care and caution for her own safety."

The court refused both these instructions as asked, and modified both of them by adding to the end of each some additional matter. To the end of Instruction No. 1 the court added the following: "And provided further, you find and believe from the evidence that plaintiff's son, in driving said automobile was acting for plaintiff and under her direction and control, that then before you find your verdict in her favor, you further find and believe from the evidence that her said son, in driving said automobile over and upon the public streets at the places mentioned in the evidence, was exercising the highest degree of care which a very careful person would exercise under the same or similar circumstances."

There was also a slight interlienation in this Instruction No. 1, made by the court, but no point is made thereon in the assignment of error, and this interlineation thereby becomes immaterial.

To Instruction No. 2, supra, the court added the following: "And provided further, you find and believe from the evidence that plaintiff's son, in driving said automobile was acting for plaintiff and under her direction and control, that then before you find your verdict in her favor, you further find and believe from the evidence that her said son, in driving said automobile over and upon the public streets at the places mentioned in the evidence, was exercising the highest degree of care which a very careful person would exercise under the same or similar circumstances."

The court gave the instruction as thus modified.

Upon a trial before the jury the verdict and judgment were...