Aldrich v. St. Louis Transit Co.

GOODE, J. The legal propositions contained in the instructions given by the trial court do not receive our entire approval; but we have not set out and shall not discuss the instructions because we think no case was made for the jury to determine. We have given a full summary of the evidence in order to make a complete presentation of the plaintiff’s conduct in connection with the accident in which she was injured. It is argued by the defendant’s counsel that she was run over because of her own carelessness and ought to be nonsuited; and the due consideration of this contention requires that her actions both before and after she stepped on the track where she was hurt be regarded. The statement of some witnesses that the car could have been stopped easily before it reached the plaintiff after the motorman began to ring the bell, may be put aside as of no moment; for at that time the plaintiff had just passed over the curb on the south side of [88] St. Louis avenue. The car was eighty steps away and the motorman had no reason to think she would walk in front of it despite warnings. He was not bound to put the car under control at the first sight of the plaintiff instead of relying on her observing it or being aroused by the bell. But she neither stopioed nor noticed the car, but continued to go forward, apparently absorbed in the writing on the postal card and unconscious of danger; and as she was under the motorman’s observation, this behavior ought to have warned him to get ready to avoid running against her. Plaintiff’s deafness by no means excused her from taking care, but imposed on her the duty of using her sight to learn whether she might safely proceed; and when she went on the track without looking for a car, as she admits doing, she was negligent. Purl v. Railroad, 72 Mo. 168; Freeman v. Holden, 75 Md. 1; Galveston R. R. v. Ryon, 80 Tex. 59; 1 Thompson Comm, on Negligence, sec. 336. But such an act of negligence does not defeat an injured plaintiff’s action if the defendant could have prevented the injury by reasonable efforts and did not try to prevent it. The rule of law in this State bearing on such cases has been declared often by the Supreme Court and we will give it as stated'in the language of an apposite decision: “It is settled that ordinary care and prudence require a person who is about to cross a railroad track at a street or public crossing, to look and listen for a train when by looking he could see, or by listening he could hear, an approaching train; and the omission to do ••either would be such negligence on his part as to prevent a recovery for an injury, provided his perilous .condition was not and could not, by the exercise of or- ■ dinar-y diligence, have been discovered in time to avoid .'injuring him.” Donohue v. Railroad, 91 Mo. 357. The same doctrine is stated and approved in Kelly v. Railroad, 75 Mo. 138; Burham v. Railroad, 56 Mo. 338; Brown v. Railroad, 50 Mo. 461; Ives v. Railroad, [89] 144 U. S. 408; Hays v. Railroad, 106 Fed. 48; Baltimore etc. R. R. v. Hellenthal, 88 Fed. 116; Baltimore etc. R. R. v. Anderson, 85 Fed. 413, and in other cases collected in the note to Bogan v. Railroad, 55 L. R. A. 419. We see, therefore, that the law does not hold the defendant harmless if the motorman could have stopped the car after he had cause to believe there was danger of running against the plaintiff. Nor is the inference inevitable that he only became aware of this danger when she stepped on the track. In most instances, persons on streets where cars .-are running will have their attention aroused by the noise one makes or by the ringing of its bell, but this •is not always true. Sometimes a pedestrian may be so .engrossed as not to hear a car-bell, or, as in this instance, .deaf so that he can not hear it. It is true too, ;that the behavior of a person may clearly signify before lie goes on the track that he will go on it in unconsciousness of impending danger, and it then becomes the duty ,o.f the motorman or engineer to begin to obtain control ,of his car or engine before it is too late to avoid striking the person, if possible. Railroad v. Tartt, 99 Fed. 369. For the foregoing reasons we would not hold that -the plaintiff’s negligence defeats her remedy as a nec.essary legal result, if she had been struck by the car as soon as she stepped on the track. But the testimony of all the witnesses who spoke • about the plaintiff’s actions is, that after she had heedlessly walked in front of the car which threatened her, she turned around on the track instead of going off, as she could have done by taking another step. Most of ■the witnesses say the plaintiff stood with her back to the ear; some that she turned about as though bewil-' .dered and started south again. But they all agree.that she could have crossed safely if she had continued ahead and that the collision was caused by her either stopping or whirling to return to the south side of the street. [90] Hence, the fact that the motorman did not stop the car as quickly as possible was not the proximate canse of the accident; since, notwithstanding that circumstance, the plaintiff would have got across in safety if she had not altered her course. Allowing that the motorman was careless in failing to stop the car before it reached the crossing, no hárm would have resulted had not the plaintiff’s last act of negligence subsequently intervened; and her later negligence was the direct and proximate cause of the injury which no effort of the motorman could avert after she turned about. He could not know she would stop or turn back, for presumably she would go ahead and pass out of danger. It is no duty of a carman to stop cars in anticipation that a passenger who is going over a street crossing, and has time to get over before the. car reaches him, may stop or turn around on the track and in consequence be run down. The motorman in the present case may have sufficiently checked his car when he saw there was some danger to the plaintiff, to have prevented a collision if it became apparent she could not get over the track before his car reached her; and he may have refrained from making a full stop when he, like the other witnesses, saw that to stop was apparently unnecessary because the plaintiff had time to cross. The degree of care one is required to take to avoid hurting another is proportioned to the likelihood of injury; or, to use another common and equivalent formula, is the care that men of ordinary prudence employ in similar circumstances. In ascertaining whether the proper caution was exercised by a defendant in a particular case, the habits and usual conduct of mankind are called to mind, since na one is required to, does, or can take precautions against sudden erratic acts. We must guard against events which, according to experience, may be expected to happen, but not those due to strange and abnormal behavior, or those which are possible but quite improbable. American Brewing Ass’n. v. Talbott, 141 Mo. 674; [91] Fuchs v. St. Louis, 133 Mo. 168. Motormeu have as much right to assume a traveler on a crossing will continue his progress as they have to assume that one whose manner shows he is conscious of his surroundings will not walk in front of a moving car. Boyd v. Railroad, 105 Mo. 371. Plaintiffs rash and thoughtless behavior while between the rails of the track is none the less fatal to her action for damages because she was absorbed by distressing news and was oblivious to danger; for those circumstances gave no intimation that she was likely to turn about or stand still until the car ran against her. Boyd v. Railroad, supra; Hill v. Drug Co., 140 Mo. 433. As the plaintiff’s negligence was shown to be the proximate cause of the injury, the request of the defendant that a verdict in its favor be directed should have beén granted, and the judgment is reversed. All concur.