Williams v. St. Louis Pub. Serv. Co.

• Decision Date: 12 June 1934
• Docket Number: No. 31182.,31182.
• Parties: JOSIE WILLIAMS v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

73 S.W.2d 199

JOSIE WILLIAMS v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.

No. 31182.

Supreme Court of Missouri.

Division One, June 12, 1934.^*

Appeal from Circuit Court of City of St. Louis. — Hon. O'Neill Ryan, Judge.

AFFIRMED.

T.E. Francis, S.G. Nipper and Vance J. Higgs for appellant.

(1) The court erred in giving Instruction 1: (a) Because it erroneously permits a recovery under the last-chance doctrine, for failure to stop the street car, after a dangerous situation arose, when the evidence did not authorize the submission of the case upon that theory, since, according to the evidence most favorable to plaintiff, it was not shown that the street car could have been stopped before it struck the automobile of decedent, after the latter went into a position of peril. Lackey v. Rys. Co., 288 Mo. 143; Clark v. Railroad Co., 319 Mo. 879; Jordan v. St. Ry., 38 S.W. (2d) 1044; Ziegelmeier v. Railroad Co., 51 S.W. (2d) 1029; Bibb v. Grady, 231 S.W. 1020; Wilson v. Flour Milling Co., 245 S.W. 205; Miller v. Wilson, 288 S.W. 997; Reno v. Railroad Co., 180 Mo. 489. (b) Because it erroneously submits failure to check the speed of the street car as a predicate of recovery, when such failure, if any, was not, and could not have been, the proximate cause of deceased's injury. Battles v. United Rys. Co., 178 Mo. App. 596. (c) Because it erroneously conjoins alleged negligence and alleged trespass and submits them as interdependent rights of recovery. Raming v. St. Ry., 157 Mo. 508. (d) Because it clearly assumes the most disputed essential fact in the case, namely, that when the car stopped decedent was on the track and unable to get off, and that then defendant resumed the motion of the street car and ran over his feet. Barr v. Nafziger Baking Co., 41 S.W. (2d) 559; Althage v. People's Motor Bus Co., 320 Mo. 604; Schimmelphenning v. Wells, 24 S.W. (2d) 154; Gott v. Kansas City Rys. Co., 222 S.W. 827; Goodwin v. Eugas, 290 Mo. 673. (2) The court erred in giving plaintiff's Instruction 2, submitting the operation of the street car at a speed of twenty miles or more per hour as a predicate of recovery, for the following reasons: (a) Because the operation of the street car at that rate of speed was not, under the conditions which obtained, negligence in law. Wood v. Wells, 270 S.W. 332; Trigg v. Water, Light & Transit Co., 215 Mo. 544; Burge v. Wabash Railroad, 244 Mo. 76; Goodwin v. Railroad Co., 75 Mo. 76; Maher v. Railroad Co., 64 Mo. 275; McGee v. Railroad Co., 214 Mo. 541. (b) Because no facts were shown which would warrant a finding that the operation of the street car at that rate of speed was an act of negligence; conversely, plaintiff's evidence tended to show that the speed of the street car was not a negligent one; that the street car was under proper control, since that evidence was that the car could have been stopped in sixty feet. To fail to hold that the operation of an interurban car through open country, as was the case here, at a speed which permitted it to be stopped in sixty feet was not negligent operation would render it impracticable to operate interurban cars. Trigg v. Transit Co., 215 Mo. 521; Wood v. Wells, 270 S.W. 332. (c) Because the evidence does not show that the operation of the street car at that rate of speed was the proximate cause of the collision between decedent's automobile and the street car. Wood v. Wells, 270 S.W. 332; Battles v. Ry. Co., 178 Mo. App. 614. (d) Because decedent was guilty of contributory negligence as a matter of law, barring recovery by plaintiff on this theory of primary negligence, in that decedent drove his automobile toward the track without looking for the approaching street car, or, if he did look, without heeding what he saw, and in applying the brakes on his automobile when only a short distance from the track with such suddenness and force as to cause the two rear tires thereon to blow out, with the result that he lost control of the automobile, so that it ran onto the track immediately in front of the street car and collided with it. Sec. 7775, R.S. 1929; Threadgill v. Railroad Co., 214 S.W. 161; Burge v. Railroad Co., 244 Mo. 94; Smith v. Wells, 31 S.W. (2d) 1025. (e) Because it clearly assumes that the automobile was struck by the street car, when this was a disputed and controverted issue of fact in the case. See authorities cited under Point 1. (3) The court erred in giving Instructions 1 and 2, considered with reference to each other, and in giving each and both of them, for these reasons: (a) Instruction 1 submits, as a basis of recovery, the hypothesis that the street car could have been stopped, after a situation of peril arose, in time to avert the collision, whereas the theory of liability submitted in Instruction 2 is that the street car could not have been, and was not, stopped before the collision occurred, because it was operated at a negligent rate of speed, and these instructions are, and each of them is, therefore, erroneous for submitting repugnant and inconsistent theories. Elliott v. Richardson, 28 S.W. (2d) 410; Crews v. Wilson, 312 Mo. 653. [Cases holding that instructions of this character are not inconsistent, under some circumstances, of which White v. Railroad Co., 202 Mo. 539; Taylor v. Railroad Co., 256 Mo. 191, and Farrar v. Railroad Co., 249 Mo. 210, are typical, distinguished.] The giving of inconsistent instructions is reversible error. Mahaney v. Railroad Co., 46 S.W. (2d) 821; State ex rel. v. Ellison, 270 Mo. 655. (b) Instruction 1 Hypothesizes the collision between the automobile and the street car, that, after decedent had been thrown upon the track, as a result of the collision, the street car started up from a position of rest and ran over his feet, and that "by reason of such collision and such being run over," decedent received injuries resulting in his death, whereas Instruction 2 hypothesizes the collision only and requires the jury to find that decedent's injuries and death resulted therefrom; and these instructions are, and each of them is, therefore, erroneous for submitting repugnant and inconsistent theories, in that, by one, plaintiff impliedly asserts that the injuries were caused by the collision and alleged subsequent starting of the car, while, by the other, she impliedly asserts that all the injuries were received in the collision. See authorities cited under subdivision (a); Behen v. Transit Co., 186 Mo. 440; Graefe v. Transit Co., 224 Mo. 264. (4) The court erred in giving Instruction 3, for the reason that it told the jury that defendant was not entitled to the exclusive use of Marshall Avenue at the point of the accident, when there was no contention made by defendant that it was entitled to such use, and because this abstract statement of law was misleading and prejudicial. McLaughlin v. Marlatt, 296 Mo. 656; State ex rel. v. Huddelston, 52 S.W. (2d) 33.

Thomas Bond and Earl M. Pirkey for respondent.

(1) The danger zone begins under the humanitarian doctrine on the first appearance of danger. Martin v. Fehse, 55 S.W. (2d) 441; Kloeckener v. St. Louis Pub. Serv. Co., 53 S.W. (2d) 1044. (2) An instruction which recites several acts of negligence in the conjunctive is not erroneous although there was no evidence in support of some of them, where there is evidence of anyone which would support a verdict. Jackson v. Railroad Co., 171 Mo. App. 443; Bauer v. Fahr, 282 S.W. 150; La Pierre v. Kinney, 19 S.W. (2d) 311; McKenzie v. Randolph, 257 S.W. 126; Porterfield v. Terminal Railroad Assn., 5 S.W. (2d) 452; Taty v. Sack, 19 Mo. App. 477; Wright v. McPike, 70 Mo. 176. (3) When a fact is once sufficiently hypothesized in an instruction it is not improper to assume it in a subsequent clause. Windsor v. McKee, 22 S.W. (2d) 66. (4) Appellant cannot complain of an error in an instruction not given by appellant when appellant's instruction contains the same error. Coleman v. Rightmeyer, 285 S.W. 405; White v. Railroad Co., 250 Mo. 476.

FRANK, P.J.

Action by respondent, plaintiff below, to recover the statutory penalty for the alleged negligent killing of her husband, Samuel Williams. Plaintiff recovered judgment for $10,000 and defendant appealed.

Plaintiff's husband was injured by a collision between an automobile which he was driving and a street car owned and operated by defendant. The collision occurred in St. Louis County where the street car track crosses Marshall Avenue in said county. Marshall Avenue runs north and south and the street car tracks run east and west. The collision occurred on March 8, 1928, and deceased died as a result of his injuries four days later.

The only complaint made on this appeal is that the court erred in giving instructions one, two and three on behalf of plaintiff.

The petition counted on two grounds of negligence: (1) the operation of the street car at a negligent and excessive rate of speed, and (2) negligence under the humanitarian doctrine in that the motorman operating the street car failed to prevent the collision by stopping the street car or slackening the speed thereof after he saw, or by exercising ordinary care could have seen deceased in a position of peril, although he could have done so with the means at hand and with safety to those on board the car.

[1] Plaintiff's Instruction No. 1 submitted the case to the jury under the humanitarian doctrine. The complaint made against this instruction is: (1) there was no evidence that the street car could have been stopped before it struck the automobile, after deceased went into a position of peril, and (2) it was not shown that the failure to check the speed of the street car was, or could have been, the proximate cause of the injury and death. Otherwise stated, the effect of defendant's complaint against this instruction is that the evidence was not sufficient to make a case for the jury under the humanitarian doctrine. On the record presented in this court, defendant is not in a...