Bruce v. United Railways Co.

158 S.W. 102, 175 Mo. App. 568, 1913 Mo. App. LEXIS 231

• Court: Missouri Court of Appeals
• Decided: June 24, 1913
• Status: Published

Opinion

ALLEN, J.

This is an action by a husband to, re-

cover damages alleged to have been sustained by him in consequence of personal injuries suffered by his wife, resulting from alleged negligence of the defendant. Plaintiff recovered and the defendant prosecutes the appeal.

It appears from the evidence that on August 22, 1900, at about 10':30 p. m., plaintiff’s wife alighted . from a westbound car of defendant at a regular stopping place on'a private right of way of defendant in the city of St. Louis, at the intersection of Central and Oakland avenues, public streets in said city; that defendant maintained at said point a double track, i. e., two tracks parallel with each other, upon one of which, the northern track, it operated its westbound cars, and upon the other its eastbound cars; that upon alighting from said car upon which she had been a passenger, plaintiff’s wife turned and walked across the westbound track, behind this car, and attempted to cross the eastbound track; that before she got entirely across the latter track, and apparently just as' she was stepping from the southern rail thereof, she was struck by an eastbound car of defendant and hurled off of the track, to the south thereof, against a. telegraph pole, whereby she was painfully ,and seriously injured.

The petition counts upon (1) common law negligence; (2) the violation of what is known as the vigilant watch ordinance of the city of St. Louis; and (3) the violation of a speed ordinance of the city of St. Louis' limiting the speed of street cars in that portion of the city to fifteen miles per hour. The answer of defendant was a general denial, coupled with the plea that the injuries to plaintiff’s wife, if any, were caused by her own negligence and carelessness in stepping on the track immediately in front of a moving car. The reply was conventional.

On behalf of plaintiff, the evidence tended to prove that the eastbound car which struck plaintiff’s wife appro ached, the crossing in question, at which the westbound car had stopped, at a high rate of speed, to-wit, at about twenty-five miles per hour; that no bell or gong was sounded, or other signal of warning given, as the ear approached the crossing; and that the motorman of the eastbound car was not keeping a lookout ahead, but was talking to two girls who were seated on the sand bos on the front platform.

I. No demurrer to the evidence was offered at the close of plaintiff’s case, mirabile dictu, but one was interposed at the close of all the evidence in the case, and the appellant earnestly insists that the trial court erred in refusing to sustain the same. In the argument with respect to the court’s action upon the demurrer, learned counsel for appellant appears to concede that the evidence adduced on behalf of plaintiff was sufficient to show, prima facie, negligence on the part of defendant’s motorman in charge of the eastbound car which struck plaintiff’s wife. As to this, we think there can be no doubt. The contention, however, is that the evidence conclusively shows that plaintiff’s wife was guilty of negligence in stepping from behind the car from which she had alighted, immediately in front of the approaching eastbound car, before her vision was entirely unobstructed; and that her negligence in so doing was the direct cause of her injuries.

We are unable to concur in this view of the case. Were the facts detailed in evidence such as to . make it appear beyond dispute that the plaintiff’s wife stepped from behind the westbound car immediately in front of the car which struck her, without looking for the approach of the latter car, undoubtedly her injuries would be attributable solely to her own lack of care. The evidence however does not make out such a case. On behalf of plaintiff, two witnesses, who were on the front platform of the eastbound car, testified that they saw plaintiff’s wife when the car was about a half a block, or one hundred and fifty feet, away from her. One of these witnesses testified on cross-examination that she looked towards the approaching car as she went to go upon the easthonnd track. They both testified that she was struck by the car just as she was stepping from the last rail of this track; as one of them said: “One more step and she would have been off. ’ ’ And when struck by the car she was thrown to the south, entirely off of the track.

Plaintiff’s wife, of course, was not a witness in the case. The presumption that she exercised ordinary care for her own safety in going upon the track in question must be indulged, in the absence of testimony o,r of physical facts and circumstances making the contrary appear. In view of the evidence in the record that she did look before going upon the track, which the physical facts cannot be said to refute, there would seem to he little, if any, ground to contend that plaintiff’s wife was guilty of negligence as a matter of law. Certain it is that the evidence does not conclusively show negligence on her part, but makes the question of her negligence a matter for the consideration of the jury. The fact that she was evidently nearly across the track when she was struck, that there was evidence that one more step would have taken her out of danger, is altogether consistent.with the theory that she looked for the car before going upon the track, as one witness said she did. And though she may have seen the car approaching, she was entitled to rely • upon the assumption that it was not being operated at an unlawful rate of speed, to-wit, in excess of fifteen miles per hour.

There was testimony on behalf of plaintiff to the effect that the westbound car from which his wife had alighted had moved west, some little distance away from the crossing, before plaintiff’s wife started to go upon the eastbound track, which tends to show that she did not step from behind the westbound car,' while the latter was standing immediately in front of the easthonnd car, as is contended by appellant. In view of plaintiff’s evidence, taken as a whole, the contention that his wife should be held to be guilty of negligence as a matter of law is without merit.

Learned counsel for appellant insist that plaintiff ’s case is refuted by the physical facts developed by the testimony of his own witnesses, and that for this reason the instruction in the nature of a demurrer to the evidence should have been given. This argument proceeds upon a mathematical calculation based upon the speed of the ear, as estimated by plaintiff’s witnesses, the minimum rate of speed at which it appeared plaintiff’s wife was proceeding, and taking into consideration the distance which, according to plaintiff’s witnesses, each would have to traverse, after plaintiff’s wife started to cross, in order to reach the point where she was struck by the car. That is to say, the testimony of the witnesses who were on the front platform of the eastbound car was that the car was about half a block, or one hundred and fifty feet, from the crossing when they saw plaintiff’s wife start to go upon the track; and these witnesses and others estimated that the car was running at about the rate of twenty-five miles per hour. It appeared that the distance betwefeen the rails of the track was four feet ten and one-half inches, and that the two tracks were four feet nine and one-half inches apart.- And appellant proceeds to demonstrate that, if the testimony of plaintiff’s witnesses be true, the car could not have struck his wife, for even had she walked at a very slow rate she would have entirely crossed the track before the car could have reached that point.

This argument, however, is based upon the supposition that plaintiff’s witnesses were altogether correct in their estimates of speed and distance. If their testimony is to be believed (and it is fox tbe jury to judge as to that), the car'was some considerable dis-. tance from the crossing at the time plaintiff’s wife started to cross, and was running at a high rate of speed, which was not slackened until at or about the time it struck plaintiff’s wife. Their estimates of the car’s speed and its distance from the crossing when plaintiff’s wife started to cross the track may be quite far from correct, without interfering with plaintiff’s right .to go to the jury. The value of such a mathematical calculation depends altogether upon the facts of the case in which it is sought to be applied. Under appropriate circumstances it may be altogether fatal to a recovery; but not so under the evidence in this record. Here, it only indicates that, either the car was traveling more rapidly than the witnesses thought, or that its distance from the crossing, at the time in question, was less than estimated by the witnesses, or both. If plaintiff’s witnesses erred as to the speed of the car, it would appear that they erred in appellant’s favor; and as to the distance in question, it may have been considerably less than estimated, without materially altering the legal aspect of the case. This distance was placed at about half a block, from which it appears it was judged to be about one hundred and fifty feet. This was, of course, a mere approximation, depending upon the recollection and estimates of the witnesses, who were boys.

Plaintiff’s case is not dependent upon a showing that the car could have been stopped within a certain distance (though there is much testimony in the record touching this question), for it appears that plaintiff’s wife had nearly crossed the tracks — one moré step would have taken her out of danger. Therefore, had the car been much nearer to her when she went upon the track than, plaintiff’s witnesses testified, she might have taken this last step and crossed in safety had the car been proceeding at a lawful rate of speed, or had any effort been made to check the speed thereof.

We think the demurrer was well ruled.

II. Another assignment of error pertains to instruction No. 1, given by the court of its own motion. The. only ^attack upon this instruction is upon the ground that ii permitted the jury* among other things, to find the defendant negligent if the motorman ‘ ‘ failed to give warning to plaintiff’s wife by sounding a bell or otherwise of the approach of said car. ” It is urged that- it was plaintiff’s duty, before going upon the track, to look and listen for an approaching car; that if she did not look, she could not recover, and that if she did look, she must have seen the car, and that, therefore, the failure, if any, to sound the gong, or give other like warning of the approach of the car, could not have been the proximate cause of the injury. In other words, the contention is that even though the-defendant’s motorman was .negligent in failing to give warning of the approaching car, there was no causal connection between such failure on his part and the striking and injuring of plaintiff’s wife.

It is unnecessary to discuss the cases cited and relied upon by appellant in support of this assignment of error, for the reason that the facts of this case appear to be such as to make inapplicable the rule which appellant seeks to apply. It may be conceded that if plaintiff’s wife actually saw the car approaching when she proceeded to cross the track, then a failure to warn her by sounding a gong or bell could not be said to be the proximate cause of her injuries. Nevertheless we think it was not error to submit this question to the jury. There was evidence that plaintiff’s wife looked; but whether or not she saw the approaching car does not appear. It is quite possible, under the circumstances in evidence, that she may have looked as she stepped upon the- track without then seeing the car. It was at night, about 10:30 p. m. The evidence showed that near the point where the accident happened was a pleasure resort, which was brilliantly illuminated. The approaching car came from the direction of the last named place with, according to plaintiff’s evidence, but a small and by no means brilliant headlight. Plaintiff’s wife was about fifty-six years old, and wore glasses. If, in fact, she looked for the car at the time she started to cross the tracks and by reason of the glare of lights from that direction, or otherwise, did not perceive that the car was approaching, or that it was sufficiently near and traveling at such speed as to endanger her in crossing, the sounding of a gong or bell would have been a warning to her of the danger of attempting to do so.

In this theory of the case, plaintiff was entitled to have submitted to the jury the question of the negligence of defendant’s motorman in failing to sound a •warning of the approach of the car. We therefore rule this assignment of error against the appellant.

III. Error is assigned with respect to the instruction given for plaintiff on the measure of damages. In the first place, it is said that there was no evidence as to the extent or character of the duties performed as a housewife to entitle plaintiff to recover for the loss of his wife’s services. An examination of the record, however, reveals that there is substantial evidence touching this matter, sufficient to enable the jury to reasonably determine the amount of plaintiff’s loss in this respect.

It is also urged that this instruction is erroneous in permitting an award of damages for the loss of the wife’s services, in that there was no proof of the value of such services. There does not appear to be definite proof of the value of the wife’s services, but this is not necessarily fatal to a recovery therefor. The character of the services was such that almost any intelligent citizen may be presumed to know the reasonable value thereof, as a matter of common knowledge; and the giving of this instruction could not well be reversible error, though the value was not directly proved, since the jury could infer the reasonable value thereof from the facts and circumstances in evidence. [Jennings v. Appleman, 159 Mo. App. 12, 139 S. W. 817 ; Mabrey v. Gravel Road Co., 92 Mo. App. 596.]

It is further urged that this same instruction is erroneous in that it permitted plaintiff to recover ‘ ‘ for his own necessary and personal care and attention” to his wife. This very question has recently been before us in Esque v. Railroad, 174 Mo. App. 317, 157 S. W. 1061, in which we held such an instruction unwarranted, and to be reversible error, where the only evidence, of any services rendered by the husband in caring for his wife was that he had to be up with her some at night, and it appearing that the husband had suffered no pecuniary loss- on account thereof. However, neither that case nor the cases there referred to can be said to be authority for the proposition here advanced by appellant, for the reason that we find in the record before us evidence sufficient, in our judgment, to justify the giving of this instruction. The plaintiff testified that he was employed as a turnkey in the police department of the city of St. Louis, at a salary of sixty-five dollars per month; that he “laid off five days” when his wife was first injured., and took care of her himself exclusively during that time. There is no direct testimony that he lost his pay for the period of time that he “laid off,” but the jury may reasonably and fairly infer that he did. It. may thus be said to reasonably appear that plaintiff directly suffered some pecuniary loss by reason of the time which he devoted to the personal care of and attention to his wife.

Undoubtedly tbe husband may recover for his own services rendered in nursing and caring for the wife, where it is shown that he devoted time thereto to the exclusion of his business or employment, whereby he suffered an actual and pecuniary loss. [Smith v. City of St. Joseph, 55 Mo. 456 ; Kaiser v. Transit Co., 108 Mo. App. 708, 84 S. W. 199.] In the Esque case, supra, upon the authority of the cases there cited, we held, in effect, that while the husband was entitled to recover for the actual loss of his time in nursing and waiting upon his wife, it was essential to his recovery therefor that there be proof of the value of the time so devoted, or circumstances from which the pecuniary value thereof may be reasonably inferred. In the case before us there is evidence of the actual loss of a certain definite amount of time from plaintiff’s employment, and, as we have said-above, the inference may be fairly indulged that the plaintiff lost his salary or wages for such period. The evidence was therefore sufficient, in our judgment, to justify this portion of the instruction. We must- therefore rule this assignment of error against the appellant.

Other questions raised are not of sufficient moment to demand discussion by us. A careful examination of the record reveals no reversible error, and the verdict is amply supported by the evidence. The judgment should therefore be affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.