Wilson v. St. Louis Transit Co.

135 S.W. 472, 233 Mo. 50, 1911 Mo. LEXIS 47

• Court: Supreme Court of Missouri
• Decided: March 2, 1911
• Status: Published

Opinions

YALL1ANT, O. J.

Plaintiff’s husband was struck and killed by a street car of defendant and this suit is brought under section 2864, Revised Statutes 1899, to recover the penalty in that statute prescribed. The acts of negligence charged in the petition are, running at high and reckless speed without keeping a vigilant watch for persons on foot moving towards or on the track, without using care to stop or control the movements of the car, without giving warning by bell or otherwise of its approach.

The petition also pleads the Vigilant Watch Ordinance and charges that it was violated, and an ordinance limiting the speed of the car to eight miles an hour and charging that in violation thereof the car was running from 15 to 20 miles an hour. The answer was a general denial and a plea of contributory negligence.

The plaintiff’s evidence tended to show as follows:

The plaintiff’s husband was a policeman on duty at the point of the accident, which was the intersection of Euclid and Laclede avenues in the western part of the city. These two avenues cross each other at right angles, Euclid avenue running north and south, 4 Laclede east and west. The defendant operated at that place two lines' of double-track railroad, the tracks on Euclid running north and south, and those on Laclede east and west, the four tracks crossing each other at right angles. There was also a switch by which a car coming north on the east track in Euclid avenue could be turned east into Laclede avenue. At the date of accident there was no building on either of the four corners of this street crossing. The accident occurred November 2, 1902, at the hour of 1:30 in the morning. Three policemen on'duty, one of whom was the plaintiff’s husband, had met at the northeast corner of this intersection. It -was their duty to send in by telephone a report to the police headquarters every hour. The box through which the report was to be sent was stationed at the southeast corner of this intersection. One of the three policemen spoke to the plaintiff’s husband, Wilson, and told him it was time to send in a report, whereupon Wilson started to cross over from the northeast to the southeast corner where the police box stood; his course was along a line several feet east of the east track in Euclid, and across both tracks in Laclede avenue; he had crossed over the north and was in the south track in Laclede avenue when a car coming from the south on Euclid turned east though the switch into Laclede, struck and so injured him that he died soon after. Another one of the three policemen, O’Neill, was also crossing the street at the same time for the same purpose, following Wilson eight or ten feet in his rear. The third policeman, Grace, remained .standing at the northeast corner. From where these policemen were, a lighted car coming north on Euclid avenue could be seen at a distance of three blocks south.. The cars that ran in Euclid avenue were called Taylor avenue cars, they ran north and south from Chouteau avenue to Dielmar, and east and west on Delmar from Euclid to Taylor. The cars on Laclede ran east and west from downtown to Forest Park. The car that caused the accident was. not a Taylor, but a Chouteau avenue car, not then carrying passengers, but coming from Chouteau avenue up Eludid and turning into Laclede for the purpose of reaching the Laclede avenue car sheds and .turning in for the night. Both the policemen testified that they saw this car coming north, one that he saw it just before it reached the switch, the other, when it was about 75 feet south of the intersection. They both testified that when the car turned into the switch the trolley slipped off the wire and the lights went out, also that it was running around the curve 20 or 25 miles an hour and that it turned east into Laclede through the open switch without halting or slacking its speed, and that after striking Wilson it ran 200 or 250 feet. They heard no gong sound.

Plaintiff read in evidence the Vigilant Watch Ordinance, and also a general ordinance limiting the speed of street cars to eight miles an hour.

On the part of defendant the testimony, tended to prove as follows:

The motorman testified that as he approached Laclede avenue, when within twenty yards of the switch, he sounded the gong, that seeing that the switch was open he passed in and around the curve running about ten miles an hour; he afterwards said seven or eight miles an hour, that it was an estimate only; it was drizzling rain, the track was slippery and it was down grade; that the trolley did not leave the wire and the lights did not go out; that' the first he saw of Wilson he was standing in the track about five feet in front of the car, he immediately applied the brakes and reversed the power but it was too late, it was impossible to stop the car in time to avoid the accident; that the car stopped within about sixty feet after striking the man. The conductor’s testimony was substantially to the same effect. An expert witness for defendant testified that a car could not pass through the switch and around the curve at the rate of 15 or 20' miles an hour without leaving the track; he thought four or five miles an hour was as fast as it could be done, on second thought he said possibly it could be done at ten miles an hour.

Defendant read in evidence an ordinance authorizing it to run cars at that place at the rate of fifteen miles an hour.

The verdict and judgment were for the plaintiff for $5000 and defendant appealed.

I. Appellant’s first point is that the court erred in refusing an instruction in the nature of a demurrer to the evidence, and on that point in the brief for appellant it is said: “The demurrer to the plaintiff’s evidence in this case presents but one point, was or was not deceased guilty of negligence, in failing to look and listen for the approach of defendant’s ear before attempting- to cross defendant’s tracks?”

It was undoubtedly the duty of the deceased to have looked and listened for an approaching car before he attempted to cross the track. One looking south down Euclid avenue could have seen a well lighted car several hundred feet distant. This car was seen by officers O’Neill and Grace; by one, as it came to the switch; by the other, when it was 75 feet south of the switch. If they saw it Wilson must have seen it; he was in as favorable a position to see it as they were and his face was turned in that direction. It would be unreasonable to indulge a presumption that he did not see it. We may presume therefore that Wilson saw it at least where either of the two others saw it, and so seeing it he must be charged with the duty of exercising- for his own safety that degree of care that an ordinary prudent man in like circumstances would have exercised. Assuming- therefore that he saw it, the question arises what did he see? He saw a car coming north on the track over which the Taylor avenue cars passed in their usual runs, crossing- Laclede avenue and going on to Delmar. If he assumed that what he saw was a Taylor avenue car and he regulated his course accordingly, was that a reasonable assumption; was it such an assumption that a man of ordinary prudence would have indulged under like circumstances? Is that a question about which there can be no two opinions, is it a question of law for the court or one of fact for the jury?

Crediting the deceased with the instinct of self-preservation and assuming as we have assumed that he saw the car, we cannot account for his act on any other theory than that he thought- this was a Taylor avenue car. Was he justified in so thinking? There was a switch there by which ears could be turned from Euclid into Laclede. If there were any cars that took that course in- the ordinary line of business the evidence does not show it; whilst the evidence on the point is meager the inference is that there were none such; this car and the car that had preceded it were Chouteau avenue cars that had done their day’s work and were going to the car sheds on Laclede' avenue to turn in for the night. This court has said in other cases that the railroad tracks are in themselves signs of danger admonishing one about to cross to be careful, but was this switch and the use to which it was liable to be put such a conspicuous sign as that the man who disregards it must be condemned as one guilty of negligence,' and is that a question to which reasonable minds could return but one answer? This car had the name ‘ ‘ Chouteau ’ ’ on it, and. that name could have been read if sufficient attention had been given and if the trolley had not slipped from the wire and left the car in darkness. Before answering the questions above suggested there is another fact that the plaintiff is entitled to have considered, that is, that this car entered the switch without halting, at full speed (20 or 25 miles an hour the two policemen said, 10' miles an hour the motorman said) — swung around the curve without slacking speed. If the deceased was chargeable with notice of the switch and the use to which it was liable to be put yet assumed that it would be necessary for a car, aimed as this one was, to stop to enable the motorman to see that the switch was properly set or to set it before passing in, can it be said as a matter of law that he had no right to indulge any such presumption or should we say, that whether he was negligent or not in so assuming was a question for the jury?

According to the testimony on both sides the ear came around that sharp curve at a dangerous rate of speed, which is a fact the deceased was not charged with the duty of knowing or anticipating. According fco the two policemen the car was running 20 or 25 miles an hour, according to the motorman only ten, and on second thought perhaps seven or eight miles, and according to him also the track was wet and slippery and it was down grade, conditions known to the motorman and to guard against which was his duty. According to defendant’s foreman, Cushman, a car could not pass through the curve at the rate of fifteen to twenty miles an hour without leaving the rails. That was the opinion of one witness against the opinion of the two policemen that the car did in fact go through the curve at twenty to twenty-five miles an hour. Mr. Cushman thought that four miles an hour, possibly ten, was as fast as a car could have passed around the curve without jumping the track. According to Mr. Cushman, then, the motorman, if he was going faster than four miles an hour, was imprudent, and if he was going as fast as ten miles he was in the extreme limit in which it could be done with safety.

Under the circumstances of this case we hold that the question of whether or not the deceased was at the time of the accident exercising that degree of care for his own safety that a man of ordinary prudence under similar circumstances would have exercised was a question for the jury, therefore the court did not err in overruling the demurrer to the evidence.

II. In the first instruction for the plaintiff is this: “And if the jury believe from the evidence that the defendant’s servants in charge of said car caused and suffered it to run around said curve from Euclid avenue into Laclede avenue at an excessive and negligent speed, and thereby caused said chr- to so strike and injure the plaintiff’s husband,” etc. Appellant assigns that instruction as error and the point asserted is that it leaves the jury to judge what act would he negligence in law. The term “excessive and negligent speed” is interpreted by appellant to mean that it is left to the jury to say whether or not the speed that they may find the ear was going was negligent in law..

The instruction could have been worded so as to express the real meaning the court intended without rendering it amenable to this criticism, but under the circumstances we do not think it was liable to be construed by the jury as the learned counsel have construed it.

There was but one standard of negligence, as to the speed, introduced in the evidence, that was the ordinance limiting the speed, the general ordinance introduced by the plaintiff which put the limit at eight miles, and the special ordinance introduced by defendant allowing fifteen miles an hour at that place.

If the car was going as fast as the plaintiff’s witnesses said it was the court would have been justified in saying that the speed was negligent, because it was in excess of the limit prescribed by the ordinance which the defendant introduced in evidence, and whether or not it was going that fast was the only question of fact as to the speed in the case. In the light of defendant’s expert witness defendant could not well contend that it would have been error for the court to have said that it was negligent to run through the curve even as fast as the motorman said he was running. Whilst, as was said in Hinzeman v. Railroad, 182 Mo. l. c. 624, to which we are referred, it would be error to leave it to the jury to say whether or not a certain fact was negligence, to say whether or not a certain speed was negligence, yet under the circumstances of this case we do not think any harmful error was committed in the use of the word “negligent” in the connection in which it was used in this instruction.

III. Plaintiff’s instruction numbered 6 was to the effect that if the deceased saw the car coming, but by the exercise of ordinary care could not have known that it was coming- at a rate of speed in excess of the ordinance limit, he had a right to presume that it was not running in violation of the ordinance, and to proceed on his way using ordinary care to look and listen, etc. It is complained of that instruction that there was no evidence to support it.

It must be remembered that this was at night, and the car when it came in sight was coming straight towards the deceased. That fact, raised the question, of whether one standing or walking where the deceased was could judge of the speed of the car and on that question there is room for a difference of opinions. But it is said that the two other policemen saw and realized that the car was going at twenty or twenty-five miles an hour, and the argument is that what they saw he could have seen. These two witnesses do not undertake to say how fast the car was coming as it approached Laclede avenue, but they do say that it ran around the curve at twenty to twenty-five miles an hour. When the car turned from its straight line and swung into the curve it passed across the line of vision of these two witnesses and afforded them a better opportunity of judging its speed than when it was coming straight ahead; whether at the time it swung into the curve the deceased was in as favorable position to see as the two others were the evidence does not show; he was eight or ten feet ahead of O’Neill who was following- him, while Grace still stood on the northeast corner of the streets. Besides, it was in evidence that when the car struck the curve the trolley left the wire and the lights went out. We think there was sufficient evidence on which to’ submit that question to the jury.

IV. When the motorman as a witness for defendant was on the stand he had testified: “In thirty or one hundred feet of the switch I had my car down. ” By which we understand he meant that he had his car under control. On cross-examination lie was asked if, when he went with the injured man to the office of Dr. Kuhn, where he was carried immediately after the accident and witness was there asked by a police officer how it happened, he did not say in substance that his car got away from him or that he could not control it. Defendant objected to the questions on the ground that this was not a part of the res gestae and that what the motorman might have then said was not binding on the defendant. The counsel for plaintiff said he asked the questions to lay the foundation for impeaching the witness, the court admitted the evidence oh that ground,, the witness denied making any statement of that kind. In rebuttal plaintiff introduced the police officer who testified that the motorman on that occasion told him that the car got away from him or that he could not hold it. “He answered about that way, I do not remember which of the two it was, it was something about that way.” Cross-examined by defendant’s attorney: “Q. Do you know which he said, whether the car got away from him or not? A. He said this--Q. I ask you. A. I don’t remember which he said. Q. You do not remember whether he said the car got away from him? A. Or that he could not hold it, that the car was slipping. Q. He said the track was slippery? A. He s.aid the track was slippery. Q. And that he had a bad track and tried to hold the car and could not, that was about the substance of it? A. Yes, sir.”

The point is made that the witness had not in his direct examination said that he had the-car under control, but that what he said to that effect was on his cross-examination, and the argument is that plaintiff could not bring out new matter, on cross-examination and thus lay the foundation for impeachment of the witness. The statement of the witness to the effect that he had his car down when within thirty or one hundred feet of the switch, although made .during his cross-examination, was really a voluntary statement not responsive to the question. This is the form in which it came in: “Q. When yon struck the switch how fast were you running? A. Ten miles an.hour. Q. You ran into the switch at ten miles, an hour? A. In thirty to a hundred feet of the switch, I had my car down. ’ And although the witness in his direct examination did not say in so many words that he had the car under control, yet taking his testimony altogether it tended to show that he did have it under control, and if in point of fact he had lost control of it, one can scarcely read his evidence without concluding that he was' at least avoiding saying so, was not testifying with perfect • candor and therefore was subject to impeachment by showing what he had said bn the night of the accident, while the witnesses were assembled in the physician’s office in the presence of the injured man. The testimony was not competent to prove that he did lose control of the car, it was not a part of the res gestae, and the court so ruled, but the question of whether or not the car was under control or running wild was a material one in the case, and the testimony was competent for the purpose of impeaching the witness, for which purpose alone the court allowed it. [Schloemer v. Transit Co., 204 Mo. 99.] The court did not err in admitting that evidence.

Y. The court refused an instruction asked by defendant to the effect that the rights of the defendant and those of the plaintiff’s husband to use the street were “equal and mutual,” and that if the defendant’s car moved on fixed rails, propelled by electricity, and because of its weight and momentum its movement was less easily controlled than the movements of plaintiff’s husband, and if he by hastening his. movement could have gotten out of the way and he failed to do so, the plaintiff was not entitled to recover.

The learned counsel for defendant in their brief say that in their opinion the last chance doctrine (as they call it) is not in this case, but that if it is the defendant would have been entitled to that instruction on that doctrine.

The counsel are correct in saying that the last chance doctrine (which is what this court has usually called the humanitarian doctrine) is not in this case; it was expressly excluded from the consideration of the jury by another instruction given at the request of the defendant. The instructions given at the request of the plaintiff authorized a verdict in her favor only on a finding that the accident was the result of the negligence of the defendant’s servant running the car and that the deceased was himself exercising ordinary care, and the instructions given for defendant directed a verdict for defendant if the jury should find that the deceased was guilty of negligence contributing to his injury. This refused instruction assumes the deceased to be in a position of peril, whether caused by his own negligence or that of the motorman, and it instructs the jury that if he could get out of the way easier than the motorman could stop the car and he failed to do so the plaintiff could not recover. There is no call for a decision as to whether that instruction would have been a correct declaration of the law if the humanitarian doctrine had been in the case, because that doctrine was not in the case, and for that reason, if for "no other, the instruction was properly refused.

We find no reversible error in the record. The judgment is affirmed.

Lamm, Kennish and Broion, JJ., concur, Lamm, J., in an opinion filed, in which Kennish, J., concurs; Woodson, Graves and Ferriss, JJ., dissent, Graves, J., in an opinion filed, in which Woodson and Ferriss, JJ., concur, and Woodson, J., in an opinion filed in which Graves and Ferriss, JJ., concur.