Trigg v. Water, Light & Transit Company
| Decision Date | 23 December 1908 |
| Parties | MINNIE TRIGG v. WATER, LIGHT & TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. Jno. P. Butler, Judge.
Reversed and remanded (with directions).
Lozier Morris & Atwood and Jones & Conkling for appellant.
(1) It was error to set aside the verdict of the jury and grant plaintiff a new trial. Where the verdict and finding of the jury is for the right party and where plaintiff's own evidence shows that she is not entitled to recover, the order granting a new trial will be set aside whether the instructions are right or wrong. Ayers v. Railroad, 190 Mo. 228; Markowitz v. Railroad, 186 Mo. 350; Carrier v. Railroad, 175 Mo. 470; Vogg v Railroad, 138 Mo. 172; Holwerson v. Railroad, 157 Mo. 216; Homuth v. Railroad, 129 Mo. 642; Bartley v. Railroad, 148 Mo. 142; Fox v Windes, 127 Mo. 514; Carr v. Railroad, 195 Mo. 214; Moore v. Railroad, 176 Mo. 545; Zumault v. Railroad, 175 Mo. 290; Mockowik v. Railroad, 196 Mo. 550. (2) Even if the track had been so habitually used by pedestrians as a footpath that it became and was the duty of defendant's employees to anticipate the presence of pedestrians on the track, it was their duty to anticipate the presence of such footmen only as were using the track as a footpath and not those who were using the track or the side thereof as a bed to sleep upon. There is no allegation in the petition nor is there any proof that it was an habitual custom of long standing and acquiesced in with the knowledge and tacit consent of defendant for people to become intoxicated and use the side of defendant's railroad dump as a bed upon which to sleep. Ayers v. Railroad, 190 Mo. 228; Yarnall v. Railroad, 75 Mo. 575; Thompson on Negligence, secs. 1791, 1792; Beach on Cont. Negl., sec. 391; Vizacchero v. Railroad, 69 L. R. A. 188. (3) The court erred in overruling the demurer to the evidence tendered by defendant at the close of plaintiff's case and refusing to give the peremptory instruction asked by defendant at the close of all the evidence in the case, for the reason that plaintiff's own evidence showed she had no cause of action and the whole of the evidence showed no liability on the part of defendant. Deceased was guilty of negligence which was the sole and proximate cause of the injury. Defendant was not negligent. Davies v. Railroad, 159 Mo. 6; Mockowik v. Railroad, 196 Mo. 550; Moore v. Railroad, 176 Mo. 547; Petty v. Railroad, 179 Mo. 666; Reno v. Railroad, 180 Mo. 489; Aldrich v. Railroad, 101 Mo.App. 77; Markowitz v. Railroad, 186 Mo. 350; Roenfeldt v. Railroad, 180 Mo. 554; Ries v. Railroad, 179 Mo. 7; Shanks v. Railroad, 101 Mo.App. 707; Zumault v. Railroad, 175 Mo. 290; Abbott v. Railroad, 121 Mo.App. 582; Cole v. Railroad, 121 Mo.App. 605; Bennett v. Railroad, 122 Mo.App. 704. (4) Even admitting that at the point where deceased was struck and killed, at the time and for a long time prior thereto defendant's railway track had been used by pedestrians as a footpath and so habitually as to create a duty on the part of defendant's servants, agents and employees in operating the cars to anticipate the presence of pedestrians and to be on the lookout for them, yet defendant was not bound to anticipate that a person would be lying on the track or on the side of the dump thereof asleep in an intoxicated condition. Ayers v. Railroad, 190 Mo. 228; McGauley v. Railroad, 179 Mo. 583; Coatney v. Railroad, 151 Mo. 35; Yarnall v. Railroad, 75 Mo. 575; Lyons v. Railroad, 59 S.W. 507; Hughes v. Railroad, 67 S.W. 984; Kendall v. Railroad, 123 Ga. 213; Thompson on Neg., secs. 1789, 1790, 1791, 1792; Beach on Cont. Neg., secs. 391, 392; Vizacchero v. Railroad, 69 L. R. A. 188; Parrish v. Railroad, 40 L. R. A. 564. (5) There is no evidence in the record that the car at the time of the accident was being run and operated at a reckless, unusual or dangerous rate of speed. In fact, the evidence all shows that the car was being run at the usual and ordinary rate of speed -- a safe rate of speed. Koegle v. Railroad, 181 Mo. 379; Schmidt v. Railroad, 191 Mo. 315; Holwerson v. Railroad, 157 Mo. 216; Stotler v. Railroad, 200 Mo. 125; Lawson on Expert & Opinion Ev. (2 Ed.), 508; Rogers on Expert Testimony (2 Ed.), 245. (6) Plaintiff's third instruction was properly refused and defendant's second instruction properly given. There was no evidence upon which to base plaintiff's third instruction. There was a total failure of proof in support of the allegation of the petition that the car at the time of the accident was being run at a reckless and dangerous rate of speed, hence the giving of defendant's second instruction was proper. Stotler v. Railroad, 200 Mo. 107; Petty v. Railroad, 179 Mo. 666; Campbell v. Railroad, 175 Mo. 161; Helm v. Railroad, 185 Mo. 122; Holwerson v. Railroad, 157 Mo. 216; Railroad v. Moseley, 57 F. 921; Holland v. Railroad, 109 S.W. 19; Koegle v. Railroad, 181 Mo. 379; Schmidt v. Railroad, 191 Mo. 315.
Russell Kneisley and Busby & Busby for respondent.
(1) In reviewing the action of the trial court upon the demurrer respondent is entitled to have her evidence taken as true; and to have appellant's contradictory evidence taken as untrue; and is also entitled to every reasonable and favorable inference of fact naturally deducible from her evidence. Forbes v. Dunnavant, 198 Mo. 199. A demurrer to the evidence admits every fact which the jurors might infer if evidence were before them. Moore v. Railroad, 194 Mo. 9. (2) The demurrer was properly overruled, because the motorman in charge of the car actually saw deceased upon or near the track, in position of danger, in time to avoid hitting him; at least, this fact may be inferred from the evidence. Appellant argues that the motorman was not required to check or stop his car simply because he saw an object upon or near the track which he thought was a clump of dirt; but this same motorman had been in the employ of defendant three years, making four trips each night, and was familiar with the track, and testified that he knew people frequented the track at all hours of the night, and he had every reason to expect persons upon the track at time and place of collision, and when he saw an object ahead the size of a man upon or in dangerous proximity to the track, it was negligence for him to drive ahead with indifference, until he got within twenty-five or thirty feet of the object, and too close to stop the car before striking it. Werner v. Railroad, 81 Mo. 373; Isabel v. Railroad, 60 Mo. 482. (3) The demurrer was properly overruled also because the motorman, by the exercise of ordinary care, could have seen Trigg in a position of danger in time to avoid striking him; at least, this fact may be inferred from the evidence. Abbott v. Railroad, 121 Mo.App. 584; Eppstein v. Railroad, 197 Mo. 720; Moore v. Railroad, 194 Mo. 1; Klockenbrink v. Railroad, 81 Mo.App. 356; Kolb v. Railroad, 102 Mo.App. 143; Mayes v. Railroad, 121 Mo.App. 618. And although Trigg may have been lying down in a state of intoxication, yet if appellant, by the exercise of ordinary care, could have saved him from his own negligence, and negligently failed to do so, then it is liable. Werner v. Railroad, 81 Mo. 368; Fearons v. Railroad, 180 Mo. 213; Shanks v. Railroad, 101 Mo.App. 707. (4) (a) The trial court after seeing and hearing the witnesses, was of the opinion that respondent's case was meritorius, and that the evidence tended to prove an unusual and reckless rate of speed at time of the collision, which the jury should have taken into consideration in determining whether appellant was negligent in operation of its car, and that the court committed error against respondent in refusing to permit the jury to consider this evidence, by refusing respondent's instruction 3, and in giving appellant's instruction 2, and therefore granted respondent a new trial. "The rule of law in Missouri has been announced with incessant repetition, that the function or duty of granting a new trial rests peculiarly and specially within the sound discretion of the trial court, and unless it is manifest and apparent that its judicial discretion has been abused or that injustice has been done, its ruling in that regard will not be disturbed by an appellate court." Farrell v. Railroad, 103 Mo.App. 457; Fitzjohn v. Railroad, 183 Mo. 77. (b) If the order granting the new trial can be sustained upon any ground assigned in the motion for new trial, the judgment should be affirmed in the appellate court. Emmons v. Quade, 176 Mo. 22; Hewitt v. Steele, 118 Mo. 463; Lovell v. Davis, 52 Mo.App. 342. (c) The testimony of all the witnesses show that Trigg was killed in a public street at a point frequented at all hours, day and night, by men, women and children, and that the car, in approaching this point in the night time, was run at the reckless rate of fifteen or twenty miles an hour, without warning of its approach. The testimony of the motorman himself shows that he had every reason to expect persons on or near track, and yet ran the car at fifteen or twenty miles an hour without warning. The court by giving a peremptory instruction that there was no evidence that the car was run at reckless rate of speed not only deprived respondent of an issue upon which she was entitled to go to the jury but thereby licensed appellant to take advantage of its own negligence by saying to the jury that the car could not be checked or stopped at the rate it was going. Appellant is not entitled to hide behind a negligent rate of speed. Morgan v. Railroad, 159 Mo. 266; Campbell v. Railroad, 59 Mo.App. 155; Duffy v. Railroad, 19 Mo. 383; Klockenbrink v. Railroad, 81 Mo.App. 359; Stepp v. Railroad, 85 Mo. 234; Wasson v. McCook, 80 Mo.App. 489; ...
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