White v. United Rys. Co. of St. Louis

• Decision Date: 31 May 1913
• Citation: 157 S.W. 593
• Parties: WHITE v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

157 S.W. 593

WHITE v. UNITED RYS. CO. OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. NEGLIGENCE (§ 119) — CONTRIBUTORY NEGLIGENCE — SUBMISSION IN ABSENCE OF PLEADING.

In the absence of a plea of contributory negligence, evidence of plaintiff merely tending to show that he is guilty of negligence is insufficient to take the question to the jury.

2. APPEAL AND ERROR (§ 882) — REVIEW — INVITED ERROR — INSTRUCTIONS.

Where, in an action for personal injuries, there was no plea of contributory negligence, and the plaintiff asked a directed verdict, if at the time of the injury "he was exercising ordinary care for his own safety," an instruction for defendant on the issue of contributory negligence was not error; the instruction being invited by that of plaintiff.

3. NEGLIGENCE (§ 141) — CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS.

An instruction on contributory negligence is not erroneous, in that the word "directly" is omitted before "contributed to cause his injuries"; the instruction not authorizing a finding

for defendant on the ground of some remote negligence of the plaintiff, not amounting to a want of ordinary care.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Roy White, a minor, by his next friend, against the United Railways Company of St. Louis. From an order granting a new trial after verdict for defendant, defendant appeals. Reversed, and verdict reinstated.

Boyle & Priest, Morton Jourdan, and T. E. Francis, all of St. Louis, for appellant. Watts, Gentry & Lee, of St. Louis, for respondent.

BLAIR, C.

This is an appeal from an order of the circuit court of St. Louis city granting a new trial after verdict for defendant in an action for damages for injuries alleged to have been the result of plaintiff's having been thrown from one of defendant's cars by the sudden application of the air brake. The answer consisted of a general denial coupled with a plea that "whatever injuries, if any, plaintiff sustained, were caused by his own carelessness and negligence in alighting or attempting to alight from the street car while it was in motion."

Plaintiff was fifteen years and five months old when injured, and had lived in St. Louis a little over six years. He testifies that during this time he had ridden upon street cars a great deal, was accustomed to riding on them, and had been for over a year making six trips daily over the line upon which he was injured. At the time he was injured he lived at 4051 Shenandoah avenue, which is in the block between Lawrence and Thurman avenues, and at the latter west-bound cars turn south. Plaintiff boarded the car at the Union Station, where he worked, about 9 p. m., and rode on the front platform until he reached a point nearly opposite his home, when he nodded to the motorman to indicate he wished to alight at the corner. He then took a position with both feet upon the step or one foot upon the front platform and one upon the step, facing inward and southward, with his right hand grasping the handhold in front of him, and with his left hand grasping the handhold upon the front of the body of the car. At this juncture the car was on Shenandoah avenue nearly 200 feet from the entrance to the curve into Thurman avenue, and was moving at its usual speed, 8 to 12 miles an hour, according to plaintiff. Plaintiff says that he saw the motorman apply the brake, heard the hiss of the air and then, he says, "I got a jolt — the hardest jolt I ever got while I have been riding on the cars, and my right handhold broke, and I swung around and hit the car, and I went under the wheels. That is all I remember until they picked me up." He testifies he was standing as above stated at the time the brake was put on, and was making no attempt to step or jump from the car. On cross-examination plaintiff testified he did not know whether he was thrown backward or forward; that to the best of his knowledge the grasp of his right hand upon the front handhold was first broken, and then he tried to hold with his left hand, but could not do so. When he was picked up, he was lying at a point about 120 feet east of the entrance to the curve into Thurman avenue, and about 160 feet east of the east building line of that avenue, and about 40 feet west of his home. Plaintiff is uncorroborated as to the jerk or lurch he says the car gave, and both his witnesses and defendant's say they neither saw nor heard anything of the kind. The motorman testified he saw plaintiff take the position usually assumed by persons about to alight from a moving car, and then step off upon the ground, and both he and the conductor deny that the air brake was applied in the manner testified to by plaintiff, and deny there was any jerk or jolt of the car. The trial court granted the new trial on the ground that it had erred in giving at defendant's request the following instruction: "The court instructs the jury that if they believe from the evidence that a reasonably prudent boy of plaintiff's age and capacity for understanding and appreciating danger would not have placed himself near the edge of the car under the circumstances, and that plaintiff's act in so placing himself near the edge of said platform and on the step caused, or contributed to cause, his injuries, if any, then your verdict must be for the defendant." Defendant contends (1) that the instruction is not erroneous; and (2) that, if erroneous, the error was invited by plaintiff.

1. It is not contended plaintiff's testimony establishes as a matter of law his contributory negligence, but merely that its tendency to show such negligence is sufficient to justify a finding thereof by the jury. This position is well supported. Willmott v. Street Ry., 106 Mo. loc. cit. 542, 17 S. W. 490 et seq., and cases cited; Parks v. Suburban Ry., 178 Mo. loc. cit. 116, 77 S. W. 70, 101 Am. St. Rep. 425 et seq.; Seymour v. Citizens' Ry., 114 Mo. loc. cit. 272, 21 S. W. 739 et seq.; Sweeney v. Railway, 150 Mo. loc. cit. 398, 51 S. W. 682, as construed in Wellmeyer v. Transit Co., 198 Mo. loc. cit. 543, 95 S. W. 925; Heinze v. Interurban Railway, 139 Iowa, 189, 117 N. W. 385. It is, of course, conceded that in actions of this kind contributory negligence ordinarily is a matter of defense which must be pleaded if a defendant would avail himself of it. It is insisted, however, that since it is well settled that, when a plaintiff conclusively convicts himself of contributory negligence, he must fail, though there be no such plea in the case, it must follow that, when his own testimony would warrant the jury in finding him guilty of contributory negligence, that question must be submitted though the answer raises no such issue. The theory upon which a defendant, despite a failure to plead it, is permitted to avail himself of plaintiff's conclusive proof of his own contributory negligence, is that in such circumstances plaintiff fails to make out his case. He disproves it. Recovery can be had only for injuries resulting from the defendant's negligence, and there is a failure of proof when plaintiff conclusively shows he is himself responsible for his injury. Milburn v. Railway, 86 Mo. loc. cit. 109; Buesching v. Gaslight Co., 73 Mo. loc. cit. 229, 39 Am. Rep. 503.

The reason for the rule in cases in which contributory negligence appears as a matter of law from plaintiff's testimony affords, therefore, no basis for the conclusion that, when testimony merely tending to show contributory negligence is offered by plaintiff, an issue of fact is thereby raised in the absence of a proper plea. The question has been heretofore considered. In Schlereth v. Railway, 96 Mo. loc. cit. 514, 10 S. W. 68, it was said: "It is the settled law of this court that the contributory negligence of the plaintiff is a matter of defense, and must be pleaded and proved in order to escape liability. * * * The only defense the answer sets up is a general denial, and therefore the defendant is in no condition to invoke the contributory negligence of the plaintiff, unless the evidence offered in behalf of plaintiff shows such contributory negligence as defeats the action." In Keitel v. Railway, 28 Mo. App. loc. cit. 663, Judge Thompson, speaking for the court, said: "It may not be out of place to observe that the only error committed by the trial court touching the question of contributory negligence was the error of submitting it to the jury at all, since it was not pleaded. It is only where a conclusive inference of contributory negligence arises out of the plaintiff's own testimony or that of his witnesses, either on their direct or their cross-examination, that contributory negligence will bar his recovery, although not pleaded. * * * In other cases contributory negligence is an affirmative defense, to be pleaded and proved by the defendant, in order to entitle him to have it submitted to the jury * * *; and if it is not so pleaded and proved, and is nevertheless submitted to the jury, the case falls within the rule that it is error to submit to the jury an issue not made by the pleadings."

In Schultze v. Railway, 32 Mo. App. loc. cit. 448, the Kansas City Court of Appeals, after conceding the rule to be that plaintiff disproves his case when he proves conclusively his injury is due to his own contributory negligence, proceeds thus: "Yet it should not be understood that in all cases where there may be evidence tending to show contributory negligence such defense may be raised at the trial, though not set up in the answer. To be thus utilized on the trial, the contributory negligence shown in plaintiff's evidence should be so clear and flagrant as to disprove the cause of action stated in the petition. If it falls short of this, and remains a question of fact, which might be decided either way, then we have little doubt that it should be pleaded to be available as a defense." The same court in Voegeli v. Marble & Granite Co., 49 Mo. App. loc. cit....