Hartman v. St. Louis Transit Co.

87 S.W. 86, 112 Mo. App. 439, 1905 Mo. App. LEXIS 142

• Court: Missouri Court of Appeals
• Decided: May 2, 1905
• Status: Published

Opinion

GOODE, J.

(after stating the facts). — The instruction given at plaintiff’s request authorized a verdict in his favor only on a finding by the jury that the “collision between the horse, wagon and car was directly caused by defendant’s motorman and agent, in charge of said car, carelessly, and negligently, and while running said car at a high and reckless rate of speed, causing said car to run down” plaintiff’s horse and vehicle. There is no allegation in the complaint that the accident was due to the failure of the motorman to use reasonable efforts to stop the car on the appearance of danger to the wagon, unless such act of negligence is included in the words that he carelessly and negligently ran into the wagon. We think the sound view of the statement is that it counts on two acts of negligence only; excessive speed and failure to ring the bell. These breaches of duty are alleged distinctly and constitute the gravamen of the plaintiff’s case as made by his pleading. The court appended an amendment to one or two instructions requested by the defendant, which permitted a recovery if the driver attempted to cross the track when the car was within a few feet of him, provided the jury believed from the evidence that the defendant’s motorman, after he discovered the danger to which plaintiff’s driver had exposed the horse and wagon by attempting to cross, could, by the exercise of ordinary care, have prevented the collision and damage. No issue of that kind was joined by the pleadings, nor was there any evidence tending to show the motorman could or could not have stopped his car after discerning the danger of a collision. The issues were broadened by the .instructions beyond both the pleadings and the evidence.

We think the court committed serious error in refusing to instruct that it was the duty of the driver of the vehicle to look and listen before he crossed the track. As we have said, there was evidence to show he failed to perform this duty. If it was thought the clause in the instruction given at the plaintiff’s instance, which denied a recovery if the driver’s negligence directly contributed to the injury, was sufficient advice on the subject of the driver’s contributory negligence, and obviated the giving of an instruction to look and listen before attempting to drive over the tracks, the conclusion was erroneous. This precise question was passed on by the Supreme Court in Murray v. Railroad, 176 Mo. 183, 75 S. W. 611, a case wherein the facts were very similar to those before us. In that case the court gave an instruction in regard to the effect of the plaintiff’s contributory negligence much more full and definite than the one given in this case, but refused some instructions requested on the effect of Murray’s failure to look and listen before he drove on the car track. For this ruling the cause was reversed, the court remarking- that the general instruction- on contributory negligence was insufficient to cover the particular act of negligence in failing to look and listen for a car; that as the defendant had requested an instruction on this very point, he was entitled to it. Such we understand to be the rule of law generally maintained in cases whose facts' are like those before us and show the car was near and in sight when the attempt to cross the track occurred.

The judgment is reversed and the cause remanded.

All concur.