Latham v. Harvey

ALLEN, J. This is an action to recover damages for personal injuries sustained by plaintiff by being-struck by an automobile belonging to the defendant and driven by him. The trial below, before the court and a jury, resulted in a verdict and judgment in favor of plaintiff in the sum of $5000, from which the defendant prosecutes this appeal. At the time of plaintiff’s injury he was in the employ of the city of St. Louis as a street sweeper and engaged in this work on Delmar Avenue, a street extending east and west in the city of St. Louis, at a point a short distance east of Euclid Avenue, a street extending- north and south, intersecting Delmar Avenue. He was struck and injured by defendant’s automobile as it was being driven in an easterly direction along the south side of Delmar Avenue. The petition alleges that on the day of plaintiff’s injury, to-wit, July 25, 1916, while plaintiff “was lawfully standing on the south side of Delmar Avenue at or near its intersection with Euclid Avenue,” he was violently struck, knocked down and run over by defendants automobile operated by defendant and which was being- driven eastwardly on Delmar Avenue. The negligence assigned is that the defendant failed to use the highest degree of care that a very careful person would have used, under like or similar cireumstnees, in operating and controlling an automobile, in that *369 defendant operated .the automobile at an excessive and dangerous rate of speed, and negligently failed to stop or attempt to stop the automobile when he knew, or by the exercise of due care on his part would have known the danger of the automobile striking and injuring plaintiff, in time, by the exercise of due care on his part to have stopped the same and avoided striking and injuring plaintiff; that defendant negligently failed to keep a vigilant watch for persons on • Delmar Avenue, and particularly plaintiff, and failed and neglected to operate the brakes and other devices on the automobile in such way as to enable him to stop it quickly, or to turn quickly aside upon the first appearance of danger to plaintiff; and that defendant negligently failed to sound any horn or to give other warning to plaintiff of the approach of the automobile. The answer, after denying generally the allegations of the petition, alleges that Delmar and Euclid Avenues were at the time in question much used by vehicles and dangerous for travel by pedestrians at any place other than their intersection; admits that plaintiff was struck and injured by an automobile owned and operated by defendant on Delmar Avenue near Euclid Avenue; but avers that plaintiff’s injuries were due to his own negligence directly contributing thereto, in that plaintiff negligently remained in a dangerous pláce, on said Delmar Avenue, in front of a moving-street car until the same was directly upon him, and then negligently stepped into the path of defendant’s automobile, without looking and listening for the same. Plaintiff testified that he was standing on the south side of Delmar Avenue, about thirty or forty feet east of the east side of Euclid Avenue, “cleaning up some dirt out of the street,” at the time when he was struck by defendant’s automobile; that when struck he was about midway between the street car track and the south curb of Delmar Avenue, facing toward the *370 northeast, with his hack to the southwest. On Cross-examination he reiterated this testimony, in substance, and further said: “Just immediately before the accident I had not been on the street car track and I was not coming off the track at the time I was struck. I come from the curb there and was sweeping that stuff up.” The testimony of plaintiff that, when struck, he was standing in the street, about midway between the street car tracks and the south curb, with his back to the approaching automobile, is corroborated by the testimony of two other witnesses. The defendant, called by plaintiff as a wtness, testified that at the time of the casualty he was driving: his automobile east on the south side of.Delmar Avenue; that a street car was proceeding east on said Delmar Avenue, and that he was “following it” (though driving between the street car track and the south curb) until he reached the west side of Euclid Avenue; that the street car proceeded perhaps twenty-five or thirty feet east of Euclid Avenue crossing* “when it slowed down for something.” And defendant said: “As I got'to the end of the car this man (plaintiff) stepped off — backed off the track; backed right into the path of my machine.” Defendant further testified that in his opinion, the automobile was about twelve or fifteen feet from plaintiff when the latter stepped from the street car track; that he immediately sounded his horn, and set his brakes, both emergency brake and foot brake, as soon as he could, and as “hard” as he could, but that the automobile struck plaintiff and dragged him a few feet. The testimony of defendant that plaintiff stepped from in front of the street car, into the path of the automobile, is corroborated by that of a witness who was an occupant of the automobile with defendant. It is unnecessary, as we view the case on this appeal, to set forth the evidence in further detail. In view of the testimony of plaintiff and the witnesses *371 corroborating Mm, to tbe effect that plaintiff was standing between the street car tracks and the south curb of tbe street, performing bis duties as street sweeper, with bis back turned to tbe west or southwest, and in full view of tbe drivers of automobiles approaching from tbe west, but that defendant nevertheless ran him down and injured him, we think that the case was obviously one for tbe jury. Only two instructions were given at plaintiff’s request; one purporting to cover tbe case, under the last chance doctrine, and tbe other an instruction on tbe measure of damages. The former, i. e. plaintiff’s instruction numbered 8, is as follows: “If you find and believe from tbe evidence that plaintiff stepped from in front of a street car, and that at tbe time plaintiff was stepping from in front of said street car, defendant saw, or by tbe exercise of ordinary care, could have seen plaintiff stepping away from said street car into tbe páth of defendant’s automobile and in a position of danger in time, by tbe exercise of ordinary care, to have stopped bis machine before it struck and injured plaintiff, than your verdict will be for tbe plaintiff.” As appears above, plaintiff, in bis petition, alleges that when struck by tbe automobile he was “standing” in tbe street; and be testified positively that be was standing on tbe south side of tbe street about midway between tbe street car tracks and tbe curb, facing northeast with bis back to tbe southwest, when be was struck from tbe rear by defendant’s automobile. This instruction, however, authorizes a recovery upon a finding that “plaintiff stepped from in front of a street car,” and that at tbe time plaintiff “was stepping” from in front of tbe car, defendant saw or by tbe exercise of ordinary care could have seen him, “stepping away from said street car,” into tbe path of defendant’s automobile, in a position of danger, in time to have stopped tbe automobile, by tbe exercise of ordinary care, before it struck and injured plaintiff. *372 It was prejudicial error to give this instruction, for the reason that it is broader than the petition (See Degonia v. Railroad, 224 Mo. 554„ 123 S. W. 807; Scrivner v. Railroad, 260 Mo. 421, 169 S. W. 83; Young v. Dunlap, 195 Mo. App. 119, 190 S. W. 1041) and requires a finding directly contrary to the facts shown by plaintiff’s own testimony. Having pleaded that he was standing in the street when struck, and having testified that he was standing midway between the street car track and the curb when struck, positively affine ing that he had not been on the- street car track, and was “not coming off the track” when struck, plaintiff was not entitled to change front and submit his ease to the jury upon the theory that he did step from in front of the street car and was struck while in the act of stepping from the car track, and recover upon such theory. [See authorities supra; also McGinness v. Railroad Co., 195 Mo. App. 390, 192 S. W. 115; Gunn v. United Railways Co., 270 Mo. 517, 193 S. W. 814; Northam v. United Railways Co., 176 S. W. 227; State ex rel. v. Ellison, 270 Mo. 645, 195 S. W. 722.] Other questions are raised by appellant, both as to this instruction and as to other matters occurring at the trial, but since the case must be retried these questions will doubtless be eliminated, and it is consequently unnecessary to encumber the opinion by discussing them. The judgment must be reversed and the cause remanded. It is so ordered. Reynolds, P. J., and Becker, J., concur. .