Mulderig v. St. Louis, Kansas City & Colorado Railroad

94 S.W. 801, 116 Mo. App. 655, 1906 Mo. App. LEXIS 183

• Court: Missouri Court of Appeals
• Decided: February 27, 1906
• Status: Published

Opinion

BLAND, P. J.

(after stating the facts). — 1. The defendant railroad company contends that as the petition does not allege that it violated city ordinance No. 1753, it was error to admit it in evidence for the purpose of proving the company guilty of negligence in failing to have a man stationed on the back end of the train. The petition alleges negligence, generally. The action is not based upon any ordinance or statute but is at common law. The authorities in this State are all one way that an ordinance of a city, which forms the basis of an action, must be specially pleaded, and if not pleaded cannot be introduced in evidence. [Robertson v. Railway, 84 Mo. 119; Danker v. Goodwin Mfg. Co., 102 Mo. App. 723, 77 S. W. 338; Welch v. Railway, 26 Mo. App. 358; Judd v. Railway, 23 Mo. App. 56.] But all of these cases hold that where the action is not based upon an ordinance, but is at common law, and where the ordinance itself does not give a right of action, but only prescribes a duty to be performed, the ordinance is admissible for the purpose of proving negligence. The ordinance offered in evidence furnishes no cause of action; it only prescribes certain duties to be performed by railroads operating trains within the limits of the city. It would be negligence to omit the performance of these duties and we think, on the authorities, siipra, the ordinance was properly admitted in evidence.

.2. The second point made by the defendant railroad company is that the court erred in admitting in evidence ordinance No. 1748 offered by the defendant transit company. It is not perceived for what purpose the ordinance was offered in evidence, for the testimony is all one way that the ordinance had been complied with. The gates were erected, maintained and in charge of a watchman, whose competency was not questioned, hence no violation of the ordinance is shown by any of the evidence and, if it was error to admit it in evidence, the error was entirely harmless.

3. The third point made by the defendant railroad company is that the court erred in giving the following instruction for plaintiff, to-wit:

“3. The court instructs the jury that if you believe from the evidence that on the twenty-first day of January, A. D., 1904, the plaintiff was being conveyed as a passenger on one of the cars of the St. Louis Transit Company to the World’s Fair Grounds and that while said car carrying the plaintiff was crossing the tracks of the defendant St. Louis, Kansas City & Colorado' Railroad Company on DeBallivierre avenue in the city of St. Louis, it was struck by and collided with a car of said St. Louis, Kansas City & Colorado Railroad Company and that as a direct result of said striking and collision the plaintiff was injured and if you further believe from the evidence that said collision and injury to the plaintiff was directly caused in whole or in part by the failure'of the defendant St. Louis, Kansas City & Colorado Railroad Company, its agents and employees to exercise ordinary care in operating its railroad and cars at said time and place, then you will find your verdict for the plaintiff and against the defendant St. Louis Kansas City & Colorado Railroad Company.”

The court gave the following instruction defining ordinary care:

“4. What constitutes ordinary care as mentioned in these instructions depends on the facts of each particular case. It is such care as a person of ordinaryprudence would exercise (according to the usual and general experience of mankind) in the same situation and circumstances as those of the St. Louis, Kansas City and Colorado Railroad Company and its employees in this case, with reference to whom the term ordinary care is used in these instructions. The omission of such care is negligence in the sense in which that word is used in these instructions.”

Plaintiff contends that this instruction defining ordinary care should he read in connection with No. 3 (quoted) above, and when read together, they properly instructed the jury in respect to the issue of defendants’ negligence. The instructions are as broad as the petition and no broader. But while a general allegation of negligence, unobjected to, is sufficient to entitle a plaintiff to proceed to make out his case, yet when it comes to instructing the jury, the instructions should call their attention to the particular acts or omissions, shown by the evidence, and which, under the law, constitutes negligence. Now, the plaintiff, to show negligence on the part of the defendant railroad company, relied on the ordinance and its violation by the omission of the railroad company to have a man stationed on the back of the train that collided with the street car, and their failure to ring a bell as 'the train backed. As contended by the defendant railroad company, the instruction utterly failed to direct the attention of the jury to the facts which, if proven, constituted negligence on its part.

In Sommers v. St. Louis Transit Company, 108 Mo. App. 319, 83 S. W. 268, the petition alleged general negligence. The evidence tended to prove specific acts of negligence. The instruction defining negligence was general. Goode, J., condemning the instruction and reversing the judgment, at pages 323-4, said:

“The evidence left room for only three grounds of recovery at most, to-wit; running the car at an excessive speed, failing to sound the bell as it approached the intersection of the streets and failure on the part of the motorman to use due efforts to stop the car after he discovered the respondent’s danger. The evidence possibly tended to prove each of those definite acts of negligence and thereby to support the respondent’s cause of action; and he was entitled to have the jury directed to find regarding those acts and no other. This does not mean that particular facts in evidence should be selected for comment ; but that a jury should be told what acts on the part of a defendant, if found to have been done, constitute negligence in the eye of the law. [Duerst v. Railroad, 163 Mo. 607; 63 S. W. 827; Allen v. Transit Co., 81 S. W. 1142; Lesser v. Railroad, 85 Mo. App. 326.] Instructions authorizing verdicts for any kind of negligence the juries might believe occurred were condemned in those cases. In the Allen case a general instruction was given, the petition, as in the present case, charging general negligence only. The Supreme Court remarked that whatever might be said concerning the sufficiency of the petition, the instruction should have defined the issues the jury were to try. The first instruction given for this respondent authorized a verdict for him if the carmen carelessly and negligently caused and permitted the car to run against the wagon, while the fourth instruction,” etc.

We think the instruction is clearly erroneous and calls for a reversal of the judgment.

4. Counsel for the defendant railroad company challenges the correctness of other instructions given and assigns error for the refusal of certain other instructions asked by it. In view of the fact that the judgment must be reversed for the error above noted, we deem it unnecessary to further discuss this branch of the case.

5. The defendant transit company assigns as error the giving of the following instructions asked by the defendant railroad company:

“5. The court instructs the jury that if they find from the evidence that after the train and cars operated by the defendant St. Louis, Kansas City & Colorado Railroad Company had commenced backing from the west toward DeBallivierre avenue along which the tracks of the St. Louis Transit Company were laid, the servants and agents of the defendant St. Louis Transit Company caused its car mentioned in the evidence to undertake to pass over and across the tracks of the defendant, the St. Louis, Kansas City & Colorado Railroad Company, along which the said train of the defendant St. Louis, Kansas City & Colorado Railroad Company was hacking and so close to the train of the defendant as to prevent the employees of said company operating said train from being able in the exercise of ordinary care to stop said train in time to avert collision, then the plaintiff is not entitled to recover against the said defendant St. Louis, Kansas City & Colorado Railroad Company, even though the jury should further find that the employees of said company were negligent in commencing to back said train at the time and under the circumstances, and your verdict should be in favor of the said defendant St. Louis, Kansas City & Colorado Railroad Company.”

“10. The court instructs the jury that it was the duty of the defendant St. Louis Transit Company to bring its cars to a full stop at least ten and not more than twenty feet before reaching the tracks of the defendant St. Louis, Kansas City & Colorado Railroad •Company and to cause its conductor or some other employee of said company to go forward to the tracks of said railroad company for the purpose of ascertaining whether a train was approaching the crossing of said tracks and the failure if any so to do would be negligence, and if you find that the transit company failed so to do and such failure contributed to cause the plaintiff’s injuries, if any, then said St. Louis Transit Company is liable to the plaintiff in this action.”

“12. The court instructs the jury that if they find from the evidence that the person mentioned in the evidence as the watchman, L. W. Moss, was the employee of the Wabash Railroad Company and that the defendant, the St. Louis, Kansas City & Colorado Railroad Company had no control over the actions of said Moss, then the said defendant, St. Louis, Kansas City & Colorado Railroad Company, is not to be held liable in this action by reason of any negligence or carelessness of said Moss.”

And the transit company also assigns as error the refusal of the court to give the following instruction asked by it:

“4. The court instructs the jury that although they may find from the evidence that at the time and under the circumstances immediately preceding the collision mentioned in the testimony the said defendant the St. Louis Transit Company was in some respects negligent, nevertheless, if you further find that after the act or acts of negligence which you may find from the evidence to have been committed that the defendant the Colorado Railroad Company through its employees was guilty of negligence and that such negligence of the said defendant Colorado Railroad Company was subsequent to the act or acts of the negligence that you may find against the defendant the St. Louis Transit Company and that such subsequent negligence of the defendant Colorado Railroad Company was the direct and proximate cause of the plaintiff’s alleged injuries then the defendant the St. Louis Transit Company is not liable to plaintiff and your verdict must be in favor of said defendant the St. Louis Transit Company.”

Instruction No; 5 furnishes no just ground for complaint on the part of the transit company. It does not tell the jury that if they find the facts as herein recited, they should find against the transit company; it only says that they shall not find against the defendant railroad company. But the instruction is erroneous for the reason it ignores the evidence, that it was the duty of the railroad company to ring its bell as it backed its train, and to have a man on the end of the train, and was prejudicial to the plaintiff.

6. In respect to instruction No; 10, it is contended that the statute, sec. 1180, R. S. 1899, requiring the defendant to' cause the conductor or some employee to go to the railroad track (at crossings) before running the car across, has no application to railroad cars where the view of the track is unobstructed, as was the track at the DeBallivierre avenue crossing, nor where the railroad company maintains gates and a watchman, who is present and operating the gates. We will not attempt to engraft exceptions on the statute. It seems to us that there is some evidence tending to show that had the conductor been on the track, where the statute said he should be, instead of on the car that he could have been of some assistance in extricating the motormaa from the state of confusion the evidence tends to prove he was in, and perhaps, have avoided the collision. In the circumstances, we think the instruction was properly given.

7. Instruction No. 12 should not have been given, for the reason it is in the teeth of the evidence, that Moss performed the same services for the defendant railroad company as he did for the Wabash Railroad Company and was as much the gatekeeper of the one as of the other, and for the further reason there is no evidence tending to prove that he was negligent; yet we doubt if the error was prejudical to the defendant transit company.

8. The court gave the following instruction in behalf of the railroad company:

“6a. The court instructs the jury that although they may find from the evidence that at the time and under the circumstances immediately preceding the collision mentioned in the testimony, the said defendant St. Louis, Kansas City & Colorado Railroad Company was in some respects negligent, nevertheless if they further find that such negligence did not contribute directly to the injuries, and that after the act, or acts of negligence which you may find from the evidence to have been committed by that defendant, the defendant St. Louis Transit Company, through its employees was guilty of negligence and that such negligence of the said defendant St. Louis Transit Company was subsequent to the act or acts of the negligence that you may find against the defendant the St. Louis, Kansas City & Colorado Railroad Company, and that such subsequent negligence of tbe St. Louis Transit Company was tbe direct and proximate cause of the plaintiff’s injuries1, then tbe said defendant tbe St. Louis, Kansas City & Colorado' Railroad Company is not liable to plaintiff on account of said injuries and your verdict must be in favor of tbe defendant.”

If instruction No. 6a, given in bebalf of tbe railroad company is good law, then the refused instruction No. 4, asked by tbe transit company should have been given, for tbe latter is a counterpart of tbe instruction given in bebalf of tbe railroad company. Plaintiff, however, criticises tbe instruction given, on tbe ground that it did not make it clear to tbe jury that they were to find that tbe negligence of tbe transit company was tbe sole, direct and proximate cause of tbe injury.

In Montgomery v. Railway, 181 Mo. l. c. 513, 79 S. W. 938, tbe Supreme Court, speaking of tbe use of tbe phrase, “proximate cause,” in an instruction, said that it was more likely to mystify tbe jury than to assist them in reaching a conclusion.

In Clarke v. Kitchen, 52 Mo. l. c. 317, and Prince & Co. v. St. Louis Cotton Compress Co., 112 Mo. App. 49, 86 S. W. l. c. 878 tbe use of technical legal terms in instructions, without explanation, was condemned.

For tbe reason “proximate cause,” in tbe above instructions, was not explained to tbe jury, we think both should have been refused, and we seriously doubt if tbe evidence warranted tbe giving of correct instructions on this feature of tbe case for either party.

9. We find no prejudicial error against tbe transit company. But the defendants are charged as joint tortfeasors, and tbe plaintiff’s evidence tends to prove that both were guilty as charged. Under our statute if both are found guilty and damages are assessed, tbe defendants should contribute equally to tbe payment of tbe damages and are entitled to contribution among themselves. For this reason tbe judgment is reversed and tbe cause remanded.

All concur.