Hof v. St. Louis Transit Co.

WOODSON, J. This is a suit, which was instituted by the plaintiff against the defendant in the circuit court of the city of St. Louis, to recover the sum of $30,000 damages for personal injuries and loss of property, caused by a collision between him and one of defendant’s street cars, in the city of St. Louis. The petition upon which the case was tried, omitting formal parts, is as follows: “The plaintiff by leave of court amends his petition and states that the defendant is and at the times herein stated, was a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis. That at said times ’McNair avenue and Victor street at the places herein mentioned were open public streets within the city of St. Louis. “That on the 21st day of August, 1900, the plaintiff was riding his horse southward on McNair avenue and Victor street in the city of St. Louis, when defendant’s servants in charge of its east-bound car on Victor street carelessly and negligently and without any warning by bell or otherwise of the approach of said car to said crossing, and whilst running said car at a negligent and excessive rate of speed, and without using ordinary care to look out for persons and animals upon said crossing, and to control said car and moder — 453 — ate and stop said ear, caused and suffered said car to run against and upon plaintiff’s horse, knocking him down and dragging said plaintiff and horse a great distance, and causing the plaintiff great and permanent injuries upon his head, "body, shoulders and arms, and greatly lacerating plaintiff’s face and the process of the skull, and causing a great and permanent injury to the plaintiff’s nervous system and scarifying his head and face for life. And also breaking the cap of knee of plaintiff’s horse so as to destroy the value of said horse, and causing plaintiff to lose four hundred and thirty dollars in currency and also one ruby, of the value of fifty-five dollars, and to damage the setting to the extent of thirty-five dollars, and injure his clothing. “And for another and further assignment of negligence, the plaintiff avers that at the time of his said injuries and loss there was in force within the city of St. Louis an ordinance of said city by which it was provided that conductors and motormen of street cars should keep a vigilant watch for persons ■ either upon the track or moving towards it, and upon the first appearance of danger to such person the car should be stopped within the shortest time and space possible, and the plaintiff avers that at the time of said collision defendant’s motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible upon the first appearance of danger to plaintiff and his horse; which violation of said ordinance directly contributed to cause the plaintiff’s injuries and damages. “And for another assignment of negligence the plaintiff avers that at the time of said collision there was in force within the city of St. Louis an ordinance thereof by which it was provided that street cars should not be run at said place, or in the city.' of St. Louis, — 454 — at a greater speed than eight miles per hour. Yet the plaintiff avers that at the time of said collision said car was being run at a speed greatly in excess of eight miles per hour, to-wit, about twenty-five miles per hour, which violation of said ordinance directly contributed to cause said collision and plaintiff’s injury and damage. “That by the injury to his horse the plaintiff was damaged in the sum of two hundred and twenty-five dollars. That he lost $430 in cash from his pocket. That he lost one ruby of the value of $55, and his clothing to the value of $32.50 were injured and destroyed. “That by said injuries to his person the plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor and from his avocation as a merchant and sales stable, and he has lost and will lose the earnings of his labor and his said business. He has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, and is maimed for life, to his total damage in the sum of thirty thousand dollars, for which sum he prays judgment.” ' The defendant filed, the following answer (caption and signatures omitted): “Comes now the defendant in the above-styled cause, and, answering the plaintiff’s petition herein, denies each and every allegation thereof. Wherefore, having fully answered, defendant prays to be discharged with its costs. “For another and further defense to said petition defendant avers that if the plaintiff was injured, as charged in said petition, it was by reason of the carelessness and negligence of the plaintiff directly contributing thereto. “Wherefore, having fully answered, defendant prays to be discharged with its costs.” The reply was a general denial. — 455 — The cause was tried September 6th and 7th, 1901, and resulted in a verdict and judgment for the plaintiff against the defendant for the sum of seven thousand dollars. Motions for a new trial and in arrest of judgment were overruled and exceptions saved, and an appeal was duly taken to this court. At the close of plaintiff’s evidence and again at the conclusion of all the evidence in the case defendant offered an instruction in the nature of a demurrer to the evidence, each of which was by the court overruled, and defendant duly excepted. The plaintiff’s evidence tended to prove that plaintiff’s injuries were caused by a collision with one of defendant’s electric cars at the junction of McNair and Victor streets, in the city of St. Louis; that an east-bound car on Victor street was passing the intersecting street, McNair, about 8 o’clock p. m., without any signal being given, and was running at the rate of twenty to thirty miles an hour. Plaintiff was riding horseback, southward, on his way home, along McNair street, which crossed that on which defendant’s ear line ran. Near the center of the junction of those streets hung an electric arc light with a hood overhead, casting a strong light in a limited circle below its position. Outside of that circle was a large area of dense shadow. The approaching car had a low headlight on the body of the car, and approached plaintiff on a rising grade. On the northwest corner of McNair and Victor streets stood a two-story grocery store, on a building line, the usual distance back from the curb. Near the curb at the corner there, were two tall trees with dense foliage, and the lowest branches of which were seven or eight feet above the ground. At ten feet distance north of the track, the side from- which the plaintiff was coming, one could only see down Victor street about — 456 — fifty or sixty feet. Both of said streets were improved and were thirty-five feet in width, from curb to curb. As plaintiff approached Victor street his horse was moving in a slow lope until about fifteen feet of the north crossing of Victor street, when he slowed up to a rate not much faster than a walk. He looked west, from which direction the cars ran, as there is but a single track on Victor street, and as the car crosses thereon it moves eastward. He saw nothing nor heard any bell or other signal, and proceeded to cross the track. The night was very dark, and, in the circling light of the electric arc lamp overhead, he was first apprised of the approaching car by his horse suddenly swerving away to the east, and was struck by the rapidly approaching car which emerged from the darkness beyond the range of the arc lamp, which illuminated only the intersection of the two streets. That the brilliant glare of that light limited by the shadow cast by the hood so dazzled him that his vision was obscured and made it difficult to see things beyond its rays of light. Plaintiff’s evidence also tended to show that he was quite severely injured, and that his horse was rendered valueless by reason of the injuries received by it. The evidence also tended to show that in consequence of the collision he lost the sum of $450 in money, and a ruby worth the sum of $55, and some other minor losses. Defendant introduced evidence which tended to show that the plaintiff was guilty of contributory negligence, which will be noticed more particularly later on. "Whereupon the plaintiff prayed the court to instruct the jury as follows: 1. “If the jury find from the evidence in this case that on the 21st day of August, 1900, the defendant was operating the railway and car mentioned in the evi — 457 — denee for the purpose of transporting persons- for hire from one point to another in the city of St. Louis as a street railway company; and if the jury further find from the evidence that at said time McNair avenue and Victor street, at the places mentioned in the evidence, were open public streets within the city of St. Louis;- and if the jury further find from the evidence in this case that on said day the plaintiff was riding his horse-south on McNair avenue, in the city of St. Louis, at its intersection with Victor street, and that whilst riding at said place defendant’s east-bound car, on Victor street, collided with plaintiff’s horse, knocking him down and causing said horse and plaintiff to be rolled and crushed by said car and greatly injured upon his person, and said horse to be injured, and plaintiff to sustain a loss of money and of a ruby, and damage to his clothing; and if the jury find from the evidence in this case that the defendant’s servants in charge of said ear did not exercise ordinary care in running said car at and before said collision, and did not use-such care to run said car at a moderate rate of speed, and to give warning of the approach of said car to said crossing; and if the jury find from the evidence that such neglect of defendant’s servants to use ordinary care in running said car upon said crossing directly contributed to cause said collision and- injury to plaintiff’s person, and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car, before and whilst going’ upon said crossing, and such care to avoid such collision and injuries, then the plaintiff is entitled to recover. ’ ’ 2. “If the jury find from the evidence in this case that on the 21st day of August, 1900, the defendant was operating the railway and car mentioned in the evidence for the purpose of transporting persons for hire — 458 — from one point to another in the city of St. Louis as a street railway company; and if they further find from the evidence that on said day McNair avenue and Victor street, at the places mentioned in the evidence, were open and public streets within the city of St. Louis; and if the jury find from the evidence that on the evening of said day the plaintiff was riding his horse south on McNair avenue at the crossing with Victor street in the city of St. Louis, and that whilst he was on said crossing defendant’s motorman and conductor in charge of the east-bound car ran said car upon said crossing and caused said car to collide with plaintiff’s horse and plaintiff, and drag and injure the plaintiff and his horse, and cause the plaintiff to lose_ his money and property, and his clothes to be injured; and if the jury further find from the evidence that at the time that said car ran upon said crossing and collided with plaintiff and his horse defendant’s motorman and conductor in charge of said car were causing said car to be run at a speed in excess of fifteen miles per hour, as provided by the ordinances of the city of St. Louis, read in evidence; and if the jury further find from the evidence that such excessive speed of said car above that provided by the ordinances of the city of St. Louis directly contributed to cause said collision and plaintiff’s injuries and loss and damage to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car upon said track, and to avoid injury to himself and property whilst going to and upon defendant’s track, then the plaintiff is entitled to recover.” 3. “The court instructs the jury that under the ordinance of the city of St. Louis, read in evidence, it was the duty of the defendant’s motorman and conductor in charge of the car mentioned in the evidence as colliding with plaintiff and his horse, to have kept a — 459 — vigilant watch for persons either npon defendant’s track or moving towards it, and upon the first appearance of danger to such person either upon.the track or moving towards it, to stop said car within the shortest time and space possible, and if the defendant’s motorman and conductor in charge' of the said' car failed to keep such vigilant watch, or failed to stop said car within the shortest time and space possible upon the first appearance of danger to- the plaintiff, then the defendant was guilty of negligence; and if such negligence directly contributed to cause plaintiff’s injury, and if the plaintiff himself exercised ordinary care to look and listen for an approaching car and to avoid, injury therefrom, before and whilst going upon' defendant’s track, and was injured by said car, then plaintiff is entitled to recover.” 4. “If the jury find for the plaintiff and further find from the evidence that plaintiff’s horse was injured by said collision, and that plaintiff lost currency from his pocket by said collision, and that plaintiff lost a jewel ruby by that collision, and that plaintiff’s clothes were injured in said collision, they should assess in their verdict such damages not exceeding two hundred and twenty-five dollars, as they may believe from the evidence the plaintiff sustained by said injury to his horse, and also such damages not exceeding fifty-five dollars as the jury may believe the plaintiff sustained by the loss of his ruby, if the jury believe from the evidence he did lose his ruby; and also damages not exceeding four hundred and thirty dollars for the loss of currency from his pocket, if the jury believe from the evidence that the plaintiff did-lose currency from his pocket, by reason of said injury; and also damages not exceeding thirty-two dollars and fifty cents for injury to his clothing, if the jury find from the evidence that the plaintiff did sustain injury to his clothing; and, also, if the jury find from the evidence — 460 — that the plaintiff sustained injuries to his person by-reason of said collision they should assess his damages at such sum as the jury may believe from the evidence will be a fair compensation to the plaintiff: 1st, for-any pain of body or mind which the jury may believe he has suffered or will hereafter suffer directly caused by said injuries; 2d, for any loss of earnings of his labor which the jury may believe from the evidence the plaintiff has sustained by reason of his injuries and directly caused thereby; 3rd, for any expenses necessarily incurred for medicines, surgical attention or-nursing, which plaintiff has sustáined by reason of said injuries and directly caused thereby, if the jury find from the evidence that the plaintiff did incur such expenses by reason of said injuries, the verdict not to exceed the sum sued for. ’ ’ "Which instructions and each of them the court gave, to which action of the court in giving each and every of the instructions aforesaid, the defendant at the time duly excepted and saved its exception. Thereupon the defendant prayed the court to instruct the jury as follows: “1. Under the pleadings and the evidence in this-case the plaintiff is not entitled to recover, and your-verdict must be for the defendant. “2. The court instructs the jury that plaintiff is-not entitled to recover upon the ground that defendant’s agents in charge of its car failed- to keep a vigilant watch or failed to stop its car within the shortest time and space possible. “3. The court instructs the jury that plaintiff is not entitled to recover upon the ground that defendant’s agents in charge of its car failed to sound the gong or to warn the plaintiff of the car’s approach. “4. If the jury find from the evidence that plaintiff rode his horse along McNair avenue and approaching the car track in Victor street at such a high and — 461 — ■excessive rate of speed as to prevent plaintiff from stopping or checking his horse in time to avert collision with defendant’s car, and that such conduct on his part caused or contributed to cause the collision and plaintiff’s injuries, then plaintiff is not entitled to-recover, and your verdict must be for the defendant. “5. It is charged in the defendant’s answer that the plaintiff himself was guilty of carelessness and negligence which directly contributed to cause his injuries. With' respect to this averment you are instructed that notwithstanding defendant may have been guilty of negligence in this case, yet, if you find that the plaintiff was himself guilty of some act of negligence which directly contributed to cause "his injuries and losses, then plaintiff is not entitled to recover. If, therefore, ypu find that the plaintiff caused the horse he was riding to attempt to pass in front of defendant ’s car when said car was so short a distance away as to prevent defendant’s motorman in charge thereof, in the exercise of ordinary care with the means and appliances at hand, from stopping said car in time to avert collision, then the plaintiff has been guilty of ■contributory negligence and is not entitled to recover, even though you should find the defendant to have been negligent with respect to the rate of speed and the failure to give warning.” Which instructions the court refused to give, to 'which refusal of the court to give said instructions and each of them, the defendant at the time duly excepted. The court gave to the jury at the request of the -defendant the following instructions: “6. The court instructs the jury that the plaintiff cannot recover for any loss sustained by the Atheline Tea Company on account of the injuries received by plaintiff. “7. With respect to the allegation that defendant’s agents were operating its car at a negligent rate — 462 — of speed, you are instructed that the defendant, under the ordinance, read in evidence, had the right to operate its cars at the place of collision at a rate of speed not to exceed fifteen miles an hour, and that it was- not negligence for it to operate its ears within that limit, unless under the circumstances you find a person of ordinary care and prudence would not have done so. Therefore, before the plaintiff can recover upon the ground of excessive speed, you must find either that defendant’s car was running at a rate of speed exceeding the ordinance limit, or at such a rate of speed under the circumstances as an ordinarily careful and prudent person would not have run said car, and not then, unless you find that said rate of speed was the direct, proximate and efficient cause of the collision and plaintiff’s injuries and losses. ££8. With respect to the allegation that those in charge of the car failed to stop the car within the shortest time and space possible upon the first appearance of danger to the plaintiff, you are instructed that this principle of law does not apply unless the plaintiff was in a position of peril a sufficient length of time to have enabled those in charge of the car, by the exercise of ordinary care and by the use of such instrumentalities at hand as would occur to an ordinarily prudent person under circumstances of that kind to employ to enable him to stop the car and avert the collision. In other words, until the plaintiff was upon the track or in actual danger of collision with the car, those in charge of the car were not obliged to bring it to a stop. ££9. The court instructs the jury that it was the duty of plaintiff before riding his horse across defendant’s track to look and listen for approaching cars, and if they believe from the evidence that plaintiff rode his horse over defendant’s track without looking or listening for the cars, and that if plaintiff had looked or listened for the car he could have seen or — 463 — heard it approaching in time to have avoided injury therefrom, in the exercise of ordinary care on his part, then plaintiff cannot recover in this action. “10. The plaintiff sues in this case to recover damages on account of injuries and losses alleged to have been sustained in a collision with defendant’s car. The acts of negligence charged against the defendant are as follows: 1st, that defendant operated its car at an unlawful rate of speed, to-wit, twenty-five miles an hour; 2nd,.that defendant’s agents in charge of its car failed to keep a vigilant watch for vehicles and persons on foot; 3rd, that said defendant’s agents failed to stop said car in the shortest time and space possible; and 4th, that defendant’s agents in charge of its car failed to sound the gong or to warn plaintiff of the approach of said car. "With respect to the foregoing allegations of negligence, you are instructed that the burden is upon the plaintiff of establishing to your satisfaction by the preponderance or greater weight of the evidence that some one or more of such acts of negligence charged was committed by the defendant, and. that such one or more of said acts of negligence, so established, were the direct, proximate and efficient cause of the collision and plaintiff’s injuries and losses, and unless he has done so, he is not entitled to recover, and your verdict must be for the defendant. “11. The court instructs the jury that even though they believe from the evidence that defendant was guilty of negligence in failing to ring its gong and in running its cars at an excessive rate of speed, yet, if they also find that plaintiff rode his horse across defendant’s track without listening or looking for an approaching ear, or approached defendant’s track at an excessive rate of speed or so fast as to be unable to stop his horse in time to avoid the accident after it became possible in the exercise of ordinary care for him — 464 — to see or hear, then plaintiff cannot recover and their verdict must be for the defendant. “12. With respect to the allegation that defendant’s agents failed to warn the plaintiff of the approach of its cars you are instructed that such warning is not required under all circumstances. If the bell of the car was sounded, the plaintiff is not entitled to recover upon that ground; but even if it was not sounded, this did not exonerate the plaintiff from looking and listening for the approach of the car, if by looking and listening he could have seen or heard it, and if he could by looking or listening have seen or heard the ears approaching in time to have avoided ■collision with it, in the exercise of ordinary care upon his part, he is not entitled to recover upon the ground ■of a failure to give warning.” Thereupon the court amended defendant’s refused instructions numbered four and five, and gave the same, as amended, of its own motion. “4. If the jury find from the evidence that the plaintiff rode his horse along McNair avenue, and approaching the car track in Victor, at such a high and ■excessive rate of speed as to prevent plaintiff from stopping or checking his horse in time to avert collision with defendant’s car and that this was negligence on part of plaintiff and that such conduct on his part caused or contributed to cause the collision and plaintiff’s injuries, then plaintiff is not entitled to recover, and your verdict must be for the defendant. “5. It is charged in the defendant’s answer that the plaintiff himself was guilty of carelessness and negligence which directly contributed to cause his injuries. With respect to this averment, you are instructed that, notwithstanding the defendant may have been guilty of negligence in this case, yet if you find that the plaintiff was himself guilty of some act of uegligence which directly contributed to cause his in — 465 — juries and losses, then plaintiff is not entitled to recover. If, therefore, you find that the plaintiff negligently caused the horse he was riding to attempt to pass in front of defendant’s car when said car was so short a distance away as to prevent defendant’s motorman in charge thereof, in the exercise of ordinary care, with the means and appliances at hand, from stopping said car in time to avert collision, then the plaintiff has been guilty of contributory negligence, and is not entitled to recover, even though you should find the defendant to have been negligent with respect to the rate of speed and the failure to give warning.” To which action of the court in amending said instructions, and each of them, and giving same as amended, defendant at the time duly excepted, and saved its exception. I. The first assignment of'error made by appellant was to the action of the court in refusing to compel the plaintiff to elect as to which of the two causes of action stated in the petition he would go to trial upon. The contention of the appellant is that there are two causes of action stated in the one count of the petition, namely; one arising ex delicto and the other ex contractu; the former being based upon the allegation of common law negligence, and the latter for the violation of the ordinance pleaded, which it is claimed could create a civil liability only by virtue of a contract of acceptance on the part of the defendant, the violation of which would be a breach of- contract and not the commission of a tort. Conceding for the sake of argument that appellant’s major premise is correct, without deciding it, yet, under the well-settled rules of practice in this State, the right to require respondent to elect was waived by not standing upon the motion to elect. The — 466 — action of appellant in answering over and going to trial upon the merits of the case amounted to an abandonment of the motion to elect, and it cannot be again successfully raised in this court. [White v. Railroad, 202 Mo. 539.]. II. It is next insisted by appellant that the court erred in not sustaining its demurrer to the evidence. The real ground of this contention is that respondent’s own evidence showed that when he was within ten or twelve feet of the car track, and that by looking he could have seen the approaching car which struck him sixty or seventy feet away, and in ample time to have averted the injury had he so looked, and having failed to do so he was guilty of such contributory negligence as should prevent a recovery in this case. If that was all the evidence in the case bearing upon that point, then there would be much force in appellant’s contention; but that is not all the evidence upon that point, as disclosed by the record. His evidence also tended to show that there were two tall trees with long branches and heavy foliage standing near the curb line which somewhat obstructed his view in the direction in which the car was approaching; that an arc lamp was suspended above the crossing where the accident occurred with a hood on it which kept its brilliancy within a limited circle, yet the rays of light therefrom extended as far as the intersection of the two streets; that a man being inside of that area of light, illuminating the four comers of the streets and all the space between them, would be conspicuous for a long distance to the motorman of a car approaching from the darkness, while the vision of plaintiff inside the blaze of light would be dazzled in such a way as to make it difficult, if not impossible, for him to see beyond the limits of the light in which he stood. Under those conditions the respondent testified that he looked for approaching cars, but saw none until — 467 — the one which struck him was right on him, so close that he had no time or opportunity to get out of its way, which was approaching at a speed of from twenty-five to thirty miles an hour, and without any signal being given of its approach. Under that state of the evidence we are of the opinion that a case was. made for the jury to pass upon, and that the court should not declare as a matter of law that respondent was guilty of such contributory negligence as would prevent a recovery. [Hauck-Hoerr Bakery Co. v. Railroad, 127 Mo. App. 190.] III. It is next insisted that the court erred in admitting evidence as to the loss of the money and jewelry sued for. 'While the evidence introduced tending to prove the causal connection between the loss of the money and jewelry and the collision was not very strong, yet we are clearly of the opinion that if the collision was the real cause of the loss, and that plaintiff was in no manner responsible for the collision, then the defendant is liable to him for the loss. This is so elementary that a citation of authorities in support thereof would-be useless. The fact that the evidence introduced upon that subject was unsatisfactory goes to the weight of the evidence and not to its admissibility. And we might add, in this connection, that the objectionable features pointed out by appellant in the instructions given upon this same subject can be obviated upon the next trial by making then more specific in requiring the jury to find that the loss ot the money and jewel was the direct result of the collision. IV. Defendant complains of the first and second instructions given by the court on behalf of the plaintiff. It is claimed that they are erroneous for the reason that each of them authorizes the jury to find for the plaintiff if they believed from the evidence that — 468 — the facts predicated therein “directly contributed to cause said collision,” etc. I will consider only the first instruction for the reason that what is said as to the first will apply equally well as to the second. The words quoted from the instruction do not tell the jury that if they found the facts stated* therein caused the collision and the consequent injury then they would find for the plaintiff, but told the jury that if they found from the evidence “that such negligence of defendant’s servants to use ordinary care in running said car upon said crossing directly contributed to cause said collision and injury to> plaintiff’s person and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car before' and whilst, going upon said crossing, and such care to avoid such collision and injuries, then the plaintiff is entitled to recover.” Under either of those instructions the jury might well have found, and doubtless did find, that plaintiff was not guilty of contributory negligence, but that he was injured by the concurring negligence of the servants in charge of the car, and some unknown cause not stated in the petition or shown by the evidence. Clearly that was error. The instruction should have been so drawn as to have told the jury that before they could find for plaintiff they must find that the negligence of the defendant caused and not merely contributed to the injury. Many things might be suggested which contributed to the injury, not stated in the petition or mentioned in the evidence; and there is nothing in the instruction which would prevent the jury from considering such outside things.' In other words, there is nothing in the instruction which told the jury that before they could find for plaintiff they must first find that its negligence caused the injury; nor does the instruction limit the — 469 — jury to a consideration of the acts of negligence stated in the petition hut leaves them to wander into the unknown field of speculation to find out, if possible, what fact it was that must have existed that contributed to defendant’s negligence which caused the injury. And there is nothing in the instruction which tells the jury what the fact was that existed which contributed to defendant’s negligence in causing the injury nor when or how it contributed therewith. I am unable to conceive of an instruction which is more indefinite in its meaning, or more calculated to mislead the jury, than the one under consideration. Learned counsel for respondent practically concedes the error above mentioned but attempts to evade the effect thereof by saying that the language complained of in his instructions is found in appellant’s refused instruction No. 5; and having thereby invited the court to commit the error pointed out, it will not now be heard to complain of that error. Where the court has adopted a theory of a case which is erroneous at the instance or request of one or both of the parties to a suit, then the party or parties inviting the error will not be permitted to urge that error for a reversal of-the judgment in this court. He or they will not be permitted “to blow hot and cold” in that matter in the trial of law suits. They must stand or fall in this court upon the theory assumed by them in the court below. While the above rule of practice is academic, yet we are unable to see its application in this case, for the reason that defendant’s instruction No. 5 was a correct declaration of the law of contributory negligence. It told the jury that if they believed from the evidence “that the plaintiff was himself guilty of some act of negligence which directly contributed to cause his injuries and losses,” then he was not entitled to recover. There is no error in this instruction, nor is there anything therein which invited — 470 — or suggested to the court or counsel for respondent to commit the error pointed out in said first and second instructions. Y. The action of. the court in admitting in evidence over the objection of appellant the ordinances mentioned in the petition, known as the “speed and watch ordinances” is also assigned as error. The reason for this assignment, as stated, is that the city of St. Louis has no power to create by ordinance a civil liability of citizens inter sese in the ab-sense of a contract accepting the ordinance. It is sufficient answer to that contention .to say that the appellant is in no position to raise that question in this case, for the reason that it tried its case upon the theory that the city possessed that power, and introduced in evidence an ordinance of the city authorizing the company to run its cars at a rate of speed at the point of the injury not to exceed fifteen miles an hour. And by asking instruction No. 7 recognized the authority to pass the watch ordinance. Appellant having tried its case upon that theory it will not now be permitted to shift positions and try its case upon a different theory from that upon which it was tried below. There are certain other assignments of error presented but they are of such minor importance that they do not merit special mention. For the error mentioned in paragraph four of this opinion, the judgment is reversed and the cause remanded for a new trial. All concur except Valliant, P. J., absent; Lamm, J., in result.