Zlotnikoff v. Wells

• Citation: 295 S.W. 129,220 Mo.App. 869
• Parties: ROSE ZLOTNIKOFF, RESPONDENT, v. ROLLA WELLS, RECEIVER OF UNITED RAILWAYS COMPANY OF ST. LOUIS, APPELLANT.
• Decision Date: 03 May 1927
• Court: Court of Appeal of Missouri (US)

295 S.W. 129

220 Mo.App. 869

ROSE ZLOTNIKOFF, RESPONDENT, v. ROLLA WELLS, RECEIVER OF UNITED RAILWAYS COMPANY OF ST. LOUIS, APPELLANT.

Court of Appeals of Missouri, St. Louis

May 3, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Charles W. Bates, T. E. Francis, J. F. Evans and B. G. Carpenter for appellant.

(1) The trial court erred in failing and refusing to give the peremptory instructions offered at the close of plaintiff's case and at the close of the whole case for the following reasons: (a) Plaintiff's decedent was guilty of contributory negligence as a matter of law in walking from directly behind the westbound street car in front of and in close and dangerous proximity to the eastbound car when, by the exercise of ordinary care, he could have seen and heard the approaching eastbound car in time to have averted the collision. Such contributory negligence is an effective bar to plaintiff's right of recovery under any primary assignment of negligence. Hornstein v. U. R. Co., 195 Mo. 440, and cases cited; 871 Giardina v. St. L. M. & R. R. R., 185 Mo 330; Zeis v. U. R. Co., 217 S.W. (Mo. App.) 324, and cases cited; Battles v. U. R. Co., 178 Mo.App. 596; Mockowik v. Railroad, 196 Mo. 550; Stotler v Railroad, 204 Mo. 619; Henderson v. Railroad, 248 S.W. 987; Boyd v. W. & W. R. R., 105 Mo. 371; Haffner v. St. Louis Transit Co., 197 Mo. 196; Rissler v. St. L. T. Co., 113 Mo.App. 120; Bierman v. U. R. Co., 244 S.W. 94. (b) Plaintiff was not entitled to recover upon the last-chance theory of negligence for the reason that the most favorable evidence demonstrated conclusively that the motorman did not have any opportunity to avoid a collision after plaintiff's decedent reached a position of danger. See authorities cited under point 1 (a). (2) Plaintiff's instruction No. 1 which directed a verdict if the jury found that the motorman could have stopped the car after he saw, or by the exercise of ordinary care could have seen, plaintiff's decedent in a position of peril, is unsupported by the evidence and was, therefore, erroneously given. See authorities cited under point 1 (a). (3) The trial court erred in giving plaintiff's instruction No. 2, which submitted the case to the jury on negligent violation of the three-mile speed ordinance, for the reason that the contributory negligence of plaintiff's decedent was a complete bar to recovery under this theory. See authorities cited under point 1 (a). (4) The trial court erred in failing and refusing to give defendant's requested instruction marked "A," which sought to withdraw from the jury that assignment of negligence concerning the three-mile speed ordinance, for the reason that plaintiff's decedent's contributory negligence was a bar to recovery on this theory. An assignment of negligence concerning which no competent evidence is adduced to support it should be withdrawn by instruction. Roseman v. Railroad, 197 Mo.App. 337; Sparkman v. Wabash, 191 Mo.App. 463; See authorities supra under point 1 (a) of Points and Authorities. (5) The trial court erred in failing and refusing to give defendant's requested instruction marked "B," for the same reasons set out, supra, under point 4 of Points and Authorities. (6) The trial court erred in failing and refusing to give defendant's requested instruction marked "C," which sought to withdraw that assignment of negligence which charged the defendant with failing to exercise that degree of care required by the last-chance doctrine, for the reason that there was not sufficient evidence to permit a recovery under this theory. See cases cited under point 1 (a) of Points and Authorities.

Bass & Bass, J. A. Golub and H. A. Loevy for respondent.

BENNICK, C. Daues, P. J., Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

This is an action for damages instituted by plaintiff for the death of her husband, Aaron Zlotnikoff, who died on October 24, 1923, as the result of having been struck by a street car, owned and operated by defendant. The verdict of the jury was for plaintiff, in the sum of $ 5000, and from the judgment rendered thereon defendant, after an unavailing motion for new trial, has perfected this appeal.

The petition counted upon five assignments of negligence, as follows: First, violation of the vigilant watch ordinance; second, violation of the fifteen-mile speed ordinance; third, violation of the ordinance limiting the speed of street cars to three miles an hour while passing other cars going in the opposite direction at a point where it is permissible for passengers to alight from or to board a car, and, also, a violation of that part of such ordinance requiring the motorman to give warning under such circumstances; fourth, negligent speed at common law; and, fifth, failure to observe the humanitarian doctrine.

The answer was a general denial, coupled with a plea of contributory negligence.

The reply was in conventional form.

This casualty occurred at the intersection of Walton and Easton Avenues, in the city of St. Louis. On Easton Avenue, defendant maintained tracks on which eastbound and westbound Wellston cars were operated. On the day in question, decedent was a passenger on a westbound Wellston car, and alighted from the rear end thereof at the usual stopping place on the east side of Walton Avenue. Just as the car from which he had alighted started to move forward, he walked around the rear end thereof directly toward the eastbound track, with his eyes to the ground, looking neither to the right nor to the left, and was struck by an eastbound car, receiving the injuries from which he died some two hours later.

Decedent was sixty-one years of age at the time, and enjoyed good health. It was further shown that the accident occurred about noon time; that the day was bright, with the sun shining, and that the distance between the south rail of the westbound track, and the north rail of the eastbound track, was five feet, four and one-quarter inches. The speed of the eastbound car was variously estimated at from five to thirty miles per hour.

Other details of the evidence will be hereafter noted as they may bear directly upon matters in issue.

The first assignment of error is directed at the action of the court in refusing to give defendant's peremptory instruction in the nature of a demurrer to the evidence, requested at the close of plaintiff's case. Inasmuch, however, as defendant did not stand upon this demurrer, but, instead, put in his own evidence, and thereafter renewed his request for a peremptory instruction to find in his favor, the correctness of the court's ruling on the last request, raised under the second assignment of error, is the only point to be reviewed. [Frye v. St. Louis, I. M. & S. R. Co., 200 Mo. 377, 98 S.W. 566; Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Smiley v. Jessup (Mo. App.), 282 S.W. 110; Roberson v. Loose-Wiles Biscuit Co. (Mo. App.), 285 S.W. 127.]

The court withdrew from the jury the assignments of negligence pertaining to defendant's alleged violation of the vigilant watch, and fifteen-mile speed, ordinances. Plaintiff abandoned the assignment as to negligent speed at common law, and submitted her case to the jury by two instructions, No. 1, hypothesizing the facts necessary for a recovery under the last-chance theory upon the finding that the motorman negligently failed to stop or slacken the speed of his car after decedent had reached a position of peril; and, No. 2, directing a verdict for plaintiff upon a finding that defendant was guilty of a violation of the three-mile speed ordinance, and that decedent was in the exercise of ordinary care for his own safety. Within the limits thus set for us, we shall proceed to consider whether a case was made for the jury.

Defendant argues most earnestly that decedent was guilty of contributory negligence as a matter of law in walking from behind the westbound car directly in front of, or at least in close and dangerous proximity to the eastbound car, when, by the exercise of ordinary care, he could have seen and heard the approaching eastbound car in time to have remained in a position of safety. If this point is well taken, it is, as defendant suggests, an effective bar to plaintiff's right of recovery under any theory of primary negligence, and, for such reason, we shall direct our attention to it.

It is well established that it is the duty of one about to enter upon a railroad track, and before going upon it, to look and listen in both directions for cars, provided by looking or listening he would be enabled to discover their approach. The least that the law demands of such person is the exercise of ordinary care, and what is ordinary care depends upon the circumstances of the particular case. Where there are obstructions which add to the danger to be encountered ordinary care requires that a commensurate precaution be taken on the part of the traveler. For such reason, where the view of a person is obstructed as he approaches a railroad track, he must look in both directions for approaching cars, after he passes the obstruction and reaches a point from which looking would be rendered...