Uetz v. Skinner

*455 BRADLEY, J. Plaintiff sued to recover for the death of her husband, who was struck and killed by an automobile driven by defendant Grace B. Skinner. The jury returned a verdict in favor of defendants, upon which verdict judgment went accordingly. Plaintiff moved for a new trial and failing therein appealed. When using the word defendant we have reference to defendant Grace B. Skinner, unless otherwise stated. Plaintiff charged negligence as follows: (1) That the defendant was not driving her automobile in a careful and prudent manner, and was not driving at a rate of speed so as not to endanger the property of another or the life or limb of persons who might be upon the public highway, but carelessly and negligently failed to have her automobile under control, and carelessly and negligently brought said automobile into collision- with plaintiff’s husband; (2) that it was the duty of defendant to keep a careful and watchful lookout for persons who might be upon the public highway, and to have her automobile under control so as to be able to stop the same and avoid striking or inj'uring persons who might be upon the public highway, and to slow down and give an audible signal’when approaching a pédestrian on a public crossing, but that defendant wholly neglecting said duty carelessly and negligently failed to have her automobile under control, and carelessly and negligently failed to give an audible signal, and carelessly and negligently operated and propelled the same against plaintiff’s husband; (3) the allegation of facts charging negligence under the humanitarian doctrine. Defendants answered separately by general denial, and a plea of contributory negligence. Defendant on July 3, 1918, was driving a seven passenger Hudson south on Boonville street in the city *456 of Springfield when she ran against and over plaintiff’s husband. Deceased, an employee of the Springfield Traction Company, was on his way to the car barns to go on duty when he was struck about 5:30 P. M. Boon-ville street runs north and south, and is intersected by Park street near where deceased was struck. The car barns are located on Boonville and Park streets; west of Boonville and south of Park. Double street car tracks are laid in Boonville, the west track being used for southbound cars. Two switches lead from the west track on Boonville at Park street and converge into a single track on Park leading to the car barns. Deceased, as stated, was on his way to work, and was riding on a southbound street car. On account of the switches leading off at Park street, the street cars at that point slow down to three or four miles. City ordinances require street cars to stop on the near side of streets to take on or discharge passengers, but the street car upon which deceased was riding on the occasion in question had no occasion to stop' at Park street, but slowed down to four or five miles per hour in crossing Park street. Deceased stepped from the moving street car at a point somewhere between the south side of Park street and a hitching post about twenty-eight feet south of the south side of Park street, and had taken two or three steps west when he was struck, run over and fatally injured. Defendant had been driving behind this street car for three blocks, and the speed at which she was moving when deceased stepped from the street car was estimated at from four to eight miles per hour. The distance defendant was from deceased when he stepped from the street car was given at from four to thirty feet. There was some evidence to the effect that deceased was run over at a point about twenty-five feet south of where he was first struck. Plaintiff complains of the giving, modifying and refusing of instructions. Plaintiff requested the following instruction: *457 “ (1) The court instructs the jury that if you find and believe from the evidence that the plaintiff, Rosa Uetz, is the widow of Ira A. Uetz, deceased, and that she brought her action against the defendants herein within six months after his death; and if you further find and believe from the evidence that on or about the 4th day of July, 1918, the defendant, Grace B. Skinner, was driving an automobile along and upon Boonville Street in the City of Springfield and at a point north of the intersection of Park Street was following a street car carrying passengers and being propelled along the tracks laid in said street; then it toas the duty of said Grace B. Skinner to drive said automobile in a careful and prudent manner so as not to endanger the life op limb of any person, and to keep a watchful lookout fori, pedestrians upon the street and upon approaching a pedestrian then being upon the traveled part of the highway and not upon the sidewalk, to slow down .and give an audible signal with the automobile horn, and upon approaching said street intersection to slow down to such speed ¿hat the said automobile could be readily stopped; and if you further find and believe from the evidence that on or about said date the said Ira A. Uetz alighted from said moving street car on Boonville Street after the same had crossed to the south side of Park Street, intending to pass over the street pavement to the sidewalk on the south side of Park street and thence to his work at the street car barns, and that in so doing he stepped on to that part of the street used by vehicles and thus placed himself in a position of peril with reference to said approaching automobile, and that there was a clear and unobstructed view between said automobile and said Ira A. Uetz after he had so alighted from said street car, and that said defendant saw, or by the exercise of reasonable care, watchfulness, and-prudence on her part, might have seen the perilous position of plaintiff’s said husband in time to have checked the speed of said automobile by using the means at her command, and thereby have avoided coming in con *458 tact with the said Ira'A. Uetz, hut failed to keep such watchful lookout or use such care and prudence or sound such-automobile horn or slow down to such speed as that said automobile could be readily stopped or failed to use such care or failed to use the means at her command for stopping said automobile, and that the plaintiff’s said husband was struck and killed by said automobile in consequence thereof. (Italics ours.) Or, if you find and believe from the evidence that the said automobile while being so driven by said defendant, was brought into contact with plaintiff’s said husband while in the public highway as aforesaid, and that afterwards the said defendant, by the exercise of reasonable care and prudence on her part and by the use of the means at her command, might have stopped her said automobile and thus have avoided running over and killing said Ira A. Uetz, then your verdict will be for the- plaintiff, notwithstanding said Ira A. Uetz was himself guilty of contributory negligence. By reasonable care, as used in these instructions, is meant such care as a reasonably prudent person would use under like or similar circumstances. Ton are further instructed that Ira A. Uetz, being dead, it is to be presumed, in the absence of evidence to the contrary, that he was not aware of the approach of the automobile that killed him. If you find a verdict for plaintiff you will allow her not less than $2000 as a penalty, and such sum in addition thereto, by way of compensation, as you find and believe from the evidence she has suffered in the premises, as pecuniary loss resulting from the death of her husband, such additional sum, if any, not to exceed $5500, and your verdict, if for plaintiff, must include penalty and compensation, if any, in one lump sum. ’ ’ The court refused this instruction as requested, but gave one like it, except the italicised portions, and the words “such care or failed to use” were added. When deceased stepped from the street car he continued west towards the sidewalk, and was struck before he had taken but two or three steps. The space *459 between tbe west rail of tbe west street car track and the curb is 16.3 feet. Defendant was driving about midway of this space or perhaps nearer the curb than the west rail. It cannot be definitely stated what part of the automobile first struck deceased. Defendant says that it was the left front fender, but it is practically agreed that it was the right front wheel that passed over deceased. The automobile stopped immediately after the right front wheel passed over deceased, and he was taken from between the right front and right rear wheels. Deceased evidently was not aware of the presence of the automobile. There was evidence that he stepped off with his back somewhat to the automobile. The court instructed that in the absence of evidence to the contrary deceased was presumed to have been unaware of the presence of the automobile, and there was no evidence to the contrary. But, viewing the evidence in the most favorable light, the conclusion is inevitable that deceased stepped off the moving street car when the automobile was in plain view and only a few feet away, and would have been seen had he looked. In failing to look he was guilty of negligence as a matter of law, which precluded plaintiff from recovery on her charge of common law and statutory negligence. There were several standing on the rear platform of the street car, and deceased walked by these men and swung off, and had taken not exceeding three steps when he was struck by an automobile moving not over eight miles per hour according to the highest estimate, and at a much less rate according to some of the -witnesses. Defendant was not required to anticipate that some one would alight from the moving street car. Failing to sound the horn at the intersection of Park street, or failing to keep a lookout, or any other alleged act of negligence, except under the last chance theory, go out of the case, because of the negligence of the deceased. Such was the theory on which the trial court proceeded when it refused#to give plaintiff’s instruction as requested. *460 What we have said concerning deceased’s contributory negligence disposes of plaintiff’s assignments based on instructions 2 and 4 given for defendant. Instruction number 4 pertained to the expert evidence, and we think was proper. Instructions 6, 8, 9 and 10' are challenged by plaintiff. Complaint is- made because of the use of the language “then in his view” in instruction number 6. It is contended that by the use of these words the instruction conflicted with plaintiff’s instruction number 1, because it assumes that deceased saw the automobile. This instruction might have properly omitted the complained-of words, but we do not think that plaintiff was in anywise prejudiced. The jury was plainly instructed on the last clear chance theory that the negligence of deceased would not defeat recovery. Whether he saw or did not see the approaching automobile was not an issue under the theory on which the cause went to the jury, and this was the only theory under the facts on which the cause could be submitted. Instruction number 8 is challenged on the ground that it confines plaintiff’s right of recovery to the first phase of the last clear chance .theory as set for in her instruction. It is also contended that this instruction ignores plaintiff’s evidence relative to the failure of defendant to 'give a warning signal, and that the instruction placed a greater burden on plaintiff that is required. We have already disposed of the warning signal question. We do not consider the instruction susceptible of the construction that plaintiff puts upon it. It does not confine plaintiff to the first phase of the last clear chance theory as set forth in her instruction. We do not think it necessary to enter upon a discussion of the many criticisms that are made concerning the challenged instructions. When all the instructions are considered together we are of the opinion that the issues were fairly submitted, and especially is this true when it appears that the evidence is almost conclusive that it was utterly impossible for defendant to have stopped her automobile in time to *461 have averted the injury after deceased stepped from the street car. Plaintiff complains because of the refusal of instructions A, C and D requested by her. Instruction C pertained to the evidence of the expert witnesses. We have ruled that instruction number 4 given for defendants on this subject was proper. It covered all that was necessary, and plaintiff has no ground for complaint in this respect. Instruction D told the jury that if they found that deceased after he alighted from the street car was on the part of the street commonly used as a street crossing by pedestrians then he was in a place where he had a right to be. This instruction ignored the conditions obtaining when deceased alighted from the street car. We have already ruled that the act of deceased in stepping from the street ear under the conditions existing at the time was negligence as a matter of law. Instruction D was properly refused. Instruction A is as follows: “By a preponderance of the evidence is .meant that greater and superior weight of the evidence which satisfies you. Preponderance is not alone determined by the number of witnesses testifying to a particular fact or state of facts. It may be correct that the statement or superior knowledge of the subject-matter testified to, of one or a few witnesses, may be of more importance and be relied upon with a greater degree of assurance than that of a greater number, and the testimony of the witnesses is often strengthened or weakened by other facts and circumstances disclosed by the evidence.” The court instructed, at the request of defendant, in instruction number 8 that the burden was on plaintiff to establish her case “by the preponderance or greater weight of the evidence.” Preponderance or greater weight was not defined in any other instruction, and plaintiff contends that it was error to refuse instruction A. After setting forth a fair definition of the term “preponderance,” the instruction proceeds to argument and illustration. “Preponderance of the evidence” is defined in Cartlich v. Met. St. Ry. Co., 129 Mo. *462 App. 721, 108 S. W. 584. It was said in Tucker v. Carter, — Mo. App. —, 211 S. W. 138, that the words “preponderance” and “preponderate,” used in instructions are well known to jurors and need no definition. It was further remarked in that case, however, that if these words had needed explanation that the party complaining could have asked an instruction defining them. Had plaintiff asked an instruction properly defining “preponderance of the evidence” without argument and illustration it should have been given, but no such instruction was asked. Instruction A was properly refused. Plaintiff’s case was submitted to a jury under fair instructions when all the instructions are considered together, and the jury found against her. There is no error, appearing in the record that would justify us in disturbing the result. The judgment should be affirmed and it is so ordered. Coos, P. J., and Farrington, J., concur.