Story v. St. Louis Transit Co.

BLAND, P. J. (after stating the facts). — 1. Defendant assumes from the environment, plaintiff’s evidence shows surrounded him, that the west-bound car so obstructed his view that plaintiff could not see the east-bound car and it was his duty to have held his horses until the west-bound car had passed a sufficient distance west to enable him to see whether or not there was a car- approaching from the west. The assumption may be correct, though it is not supported by plaintiff’s evidence. He said the west-bound car was an open one and he could see through it, if so, then it was not such an obstruction as to entirely cut off his view from the south track, it being shown that the street lamps were burning at the time. Plaintiff testified positively that he looked west and could see one hundred and eighty feet in that direction along the south track, and that he saw no car coming from the west. If the car was running twenty or thirty miles per hour, it is not impossible that plaintiff, when he started to cross the street, looked one hundred and eighty feet west and did not see the car, for .the reason it was probably a greater distance than one hundred and eighty feet west of him at the time. The physical facts, therefore, are not conclusively shown to be such that if plaintiff [430] looked, when he said he did, he would have seen the car, nor do they show conclusively that the west-hound car so obstructed his view that he could not see one hundred and eighty feet west along the south track. For these reasons the trial court was not authorized to say as a matter of law that plaintiff was guilty of contributory negligence. The facts in the case are materially different from the facts in the case of Ledwidge v. St. Louis Transit Co., Mo. App., 73 S. W. 1008, and Hornstein v. United Railways Co., 97 Mo. App. 271, 70 S. W. 1105, cited and relied on by the appellant. The law is that where a plaintiff testifies to a state of facts, though they may to some minds seem incredible, yet, if they are not opposed to the common course of nature nor contradicted by the physical facts present, he is entitled to have his case submitted to the jury, if his evidence tends to establish the facts necessary to entitle him to recover, and where a demurrer to his evidence is offered, for the purpose of a demurrer, his narrative must be taken as absolutely true and he should be given the benefit of every reasonable inference deducible therefrom. Baird v. Railway, 146 Mo. 1. c. 281, 48 S. W. 78; O ’Mara v. St. Louis Transit Co., 102 Mo. App. 1. c. 210, 76 S. W. 680. 2. Appellant objects to instruction No. 1 on the ground that no standard of what negligent speed is, is stated in the instruction. What is known as the speed ordinance was read in evidence by the plaintiff. This ordinance limited the speed of cars to ten miles per hour in the district where the accident occurred, therefore, a speed in excess of ten miles per hour would, by virtue of the ordinance, be a negligent speed per se. Weller v. Railway, 120 Mo. 1. c. 655, 23 S. W. 1061,. 25 S. W. 532; Liddy v. Railroad, 40 Mr. 506; Gratiot v. Railroad, 116 Mo. 450, 21 S. W. 1094; Bluedorn v. Railway, 121 Mo. 258, 25 S. W. 943. But the ordinance was not controlling, in the circumstances as shown by the evidence in the case. Plaintiff was at [431] a public crossing in a populous city. True, it was in the nighttime, but the streets, while not so crowded in the night as in the day, are travelled by the public at all hours and the speed at which a car may run at the intersection of streets is not fixed by ordinance but by the conditions and surroundings. Holden v. Railway, 177 Mo. 456, 76 S. W. 973. The instruction so declared the law and is not objectionable in this particular. The next objection to the instruction is, that.it submitted to the jury to find whether the motorman negligently failed to give a timely warning of the approach of the-car. Counsel makes this inquiry: “How should the warning be given?” The answer is, “By sounding the gong,” which is known by everyone at all familiar with, street car traffic to be furnished on.every car for the express purpose of giving warning when necessary. This is common knowledge, and the jury must be presumed to have been- possessed of it. The third objection to the instruction is that the terms of the instruction are, “that said motorman failed to exercise ordinary care to stop the said car after he saw, or by the exercise of ordinary care might have seen the plaintiff: in a dangerous position on or near said track,” whereas the petition alleges, that he failed to stop the car after he saw the plaintiff’s perilous position. The contention is that by introducing the phrase, “or by the exercise of ordinary care might have seen, ’ ’ into the instruction, a new element of negligence was introduced in the case, not alleged in the petition. Conceding the objection well taken, the error in the instruction was not prejudicial for the reason there is not a ray of evidence in the record that the motorman either saw or could have seen the plaintiff in time to have stopped the car and avoided the injury; on the contrary, the uncontradicted evidence is that the plaintiff was not seen and could not have been seen by the motorman in time to have avoided the collision, and we will not presume that the jury found the motorman guilty of a negligent [432] omission of duty of which there is no evidence whatever. The proviso found at the end of the instruction is objected to. This proviso is predicated on plaintiff’s evidence, which, if true, exculpated him of contributory negligence. The criticism of the proviso is, in reality, a criticism of plaintiff’s evidence, and might have very properly been made in the argument to the jury but is inadmissible as a criticism of an instruction based upon that evidence. The court gave an instruction based on the second count in the petition, which is criticised in the same manner and for the same reasons as the proviso to the first instruction. We think the instruction (quoted below) is a fair presentation of the law of the case as applied to the allegation in the second count of the petition, and is supported by the evidence tending to prove the allegation of that count. “2. If you find from the evidence that defendant ’s motorman was running said car at a rate of speed in excess of ten miles per hour at the time, and just prior to the collision with plaintiff’s horses and carriage and that said excessive rate of speed was the direct and proximate cause of the collision and consequent damages to plaintiff and his property; and if you further find from the evidence that plaintiff before going on the east-bound track looked and listened for an approaching car and neither saw nor heard one and that plaintiff exercised ordinary care in approaching and driving on to defendant’s said track, then your verdict must be for the plaintiff.” For the defendant, the court gave twelve instructions presenting the law of contributory negligence in every possible phase that the evidence warranted. Defendant complains that the court modified some of its instructions before giving them and refused . others that it asked. There is no valid ground for this complaint. The court was not only liberal in the number of instructions given for the defendant, but was also [433] liberal in its instructions on tbe law of contributory-negligence, tbe defense relied upon at tbe trial. We bave been unable to discover any reversible error in tbe record and affirm tbe judgment. All concur.