Frank v. St. Louis Transit Co.

GOODE, J. (after stating the,facts). — We attach no importance to the failure of the motorman to ring the bell as his car drew near the plaintiff, granting that he — 507 — failed to ring it. The only purpose the warning could have served was to attract the attention of the plaintiff to the approach of the north-bound car and the need of moving far enough from the east track to be out of danger. But according to his own statement this movement was impossible. He was doing his best already to drive across the east track, and if he had gotten across, would have been out of danger from both cars. Sounding a bell might have sharpened the sense of peril he felt, but could not have stimulated his efforts to escape from the position he was in. If it had been possible to turn around and go in any other direction and thus get out of the way of the north-bound car, warning signals might have been useful; but he swore he could not turn around for lack of space between the south-bound car, which was close on him, and the excavation. He could neither turn around nor cross the street straight ahead, and had no chance to do anything except what he was striving to do —that is, drive to the northeast. Therefore, negligence in not ringing the bell may be regarded as of no importance as the case now appears. It is conceivable that if his attention had been drawn to the north-bound car, plaintiff might have leaped from his wagon, and on that theory some weight might be attached to the failure to ring the bell. But such a theory is not advanced nor was it contended for at the trial. Indeed, if we accept the plaintiff’s statement as to his engrossment in the effort to get his mule and vehicle out of the way, it is most unlikely that the thought of abandoning them would have occurred to him or been acted on if it had. As the case is presented on this appeal, not ringing the bell has no significance. Neither was the alleged failure of the motorman to keep a vigilant watch of consequence; for he testified that he saw the plaintiff one hundred and fifty feet or more away and in time to have stopped his car, had not plaintiff himself stopped and afterwards started forward again, thereby deceiving the motorman as to his (plaintiff’s) intention in regard — 508 — to crossing the street. The negligence on the part of the motorman which may have been the responsible cause of the accident, was running at an excessive speed and not using the means at his command to stop the car after he saw there was danger of running against the plaintiff. One vital fact in the case is the distance the north-bound car was from the plaintiff’s wagon when the motorman, in reason, ought to have known a collision was imminent, unless he checked his car. In other words, how far apart were the car and the wagon when the motorman first had reason to believe the plaintiff was imperiled by the movement of the car? And did he have reason so to believe in time to get control of his car by proper exertions? The motorman’s own testimony shows he was alarmed at plaintiff’s forward movement, and began to apply the brake, when' the car was one hundred and fifty feet away; but he says plaintiff stopped and afterwards started again. The latter statement is contradicted by several witnesses who swore plaintiff never stopped until his mule was on the north-bound track and when the excavation just to the east prevented further advance. Several witnesses testified too, that at the moment plaintiff turned his wagon, which was then on the east track, diagonally to the northeast, the north-bound car was from one hundred and fifty to two hundred feet away. If the above statements of plaintiff’s witnesses were true and the motorman’s statement that he saw plaintiff one hundred and fifty feet away was true, it must have been apparent to the motorman • that, unless checked, his car would run against the wagon. He must have seen that the wagon was caught in a trap between the south-bound car on its north side and the excavation right in front, could not get out and would be struck by his car if it proceeded northward. Now if the car was moving at a reasonable speed and was, as the witnesses said, one hundred and fifty or two hundred feet away when the wagon was on the east track, the inference is fair that by using the means at hand the motorman could have stop — 509 — ped in time to avoid a collision. There is much evidence that the speed was very great. Some of the witnesses estimated it at sixty miles an hour. The violence of the collision, as shown by the consequences, demonstrates that the speed was high, if not reckless. As said, a passenger who was in the center of the car found himself after the collision lying on the track by the mule. The inference is fair that plaintiff had been caught in a perilous position without fault on his part. He knew nothing of the excavation on the east side of Jefferson avenue, and when he started across had plenty of time to get across before the car would reach him, if the street had been in order. He would have gotten across but for the fact that he was balked by the excavation. Meanwhile the south-bound car came along on the west track, crowded him closely and forced him to drive towards the northeast to get out of the way. While he was in this situation and his attention engrossed by his effort to escape the south-bound car, the north-bound one was approaching. It was the plain duty of the motorman on the latter car to do what he could to keep from running against the plaintiff. We therefore overrule the assignment of error based on the court’s refusal to sustain a demurrer to the evidence for the plaintiff. The case was clearly one for the jury under proper instructions, submitting the issues of negligence on the part of the motorman and contributory negligence on the part of plaintiff. There is a little testimony, chiefly that of the motorman of the north-bound car, that plaintiff himself was to blame for getting into peril; but if he was, it was the duty of the motorman to prevent the accident if possible. On this branch of the case no clear instruction was given to the jury. Instruction D, with the modification made by the court, is nearly unintelligible. It is not easy to discern how it could prejudice the defendant if understood according to its tenor. But certainly it was unlikely to impart to the jury a clear understanding of — 510 — the law regarding the duty of the defendant to try to avert harm to plaintiff if the latter carelessly had exposed himself to peril. The instruction reads like some of its words were used inadvertently, as suggested by plaintiff’s counsel; who say, however, that it could not have been harmful to the defendant. But we think the defendant was entitled to a lucid instruction regarding its duty and responsibility in case plaintiff exposed himself to peril. None was given. The motorman swore he checked his car when he thought plaintiff was going to drive across ahead of it, and after he had checked it plaintiff’s action induced the belief that he would await the passage of the car before attempting to cross; that plaintiff stopped his wagon after the brake had been set on the car and, thereupon, the motorman released the brake and the car started forward, when plaintiff drove, in front of it too late for a collision to be averted. It is not incumbent on a motorman to get his car under control if he sees someone near the track whose actions indicate that he is not going on the track. He is only bound to put his car under control on the appearance of danger to a person on or near the track. If such person’s behavior indicates that he is conscious of danger and regulating his movements with regard to it, the motorman may proceed with his car on the assumption that the person will not advance on the track. [Reno v. Railroad, 180 Mo. 469; Aldrich v. Transit Co., 101 Mo. App. 77.] Instruction D, as requested by defendant, stated the rule in terms of the present case and should have been given. Besides the instruction v/e have copied, the defendant requested and the court refused one or two which told the jury that it was the plaintiff’s duty to look and listen for an approaching car before attempting to cross the track, and if the jury believed that by doing so he might have seen or heard the car and avoided the accident, the verdict must be for the defendant. It has been declared by the Supreme Court and by this court follow — 511 — ing its authority, that a person about to cross a street car track must look and listen for cars, and if he fails to take that precaution, when by so doing he could have prevented injury to himself, he should be denied a recovery. Murry v. Transit Co., 176 Mo. 183; s. c., 83 S. W. 995, 108 Mo. App. 501; Hartman v. Transit Co., 87 S. W. 86, 112 Mo. App. 439. Many of the facts of this case are so unlike those cases wherein that rule was enforced, that they do not compel the ruling that this plaintiff should be nonsuited if he failed to look and listen for the car which struck him. It is somewhat difficult to see why a person who goes on a street car track without looking and listening for cars, should be denied relief for an injury, if the street car operatives could have avoided injuring him by ordinary care, notwithstanding his negligence, any more than he should be denied relief when he failed to observe ordinary care in any other respect and the railway company’s employees could have avoided injuring him. The specific precaution of looking and listening for a car is one exacted when men are about to go on car tracks; but we apprehend that omitting to do so will not, under all circumstances, exonerate the railway company from liability for an accident. The rule must yield to an exception when the circumstances show its application would work rank injustice. In other words, when the reason of it fails. It is applied when the injured party, because of his failure to look and listen for cars, went on the track and did not have time to get across before the car reached him. But in the present case the plaintiff proved he had ample time to . get over the tracks before the north-bound car reached him, if his progress had not been obstructed unexpectedly by the excavation in the street. If he had seen the north-bound car it would not have deterred him from advancing, because he had no reason to think it would get to him before he got across the track. Why then should he be refused a recovery because he omitted an act, which, performed, would have had no influence on his — 512 — conduct? We feel bound to overrule the exception to the court’s refusal to grant an instruction that plaintiff could not recover if, by looking and listening for the north-bound car, he could have discovered it in time to avoid the accident. Certainly he could have avoided the accident if he had seen the car and stopped. But it is equally certain that he would not have stopped if he had seen it; because he was acting under the well-founded belief that there was no cause to stop, as he would be safely over the tracks before the car got to the street crossing. As the case is for negligence only, our opinion is that the court should have omitted from its instructions E and F, the clauses stating that the plaintiff could recover although the jury might find his own negligent act directly caused or contributed to his injury. There have been recent utterances by the Supreme Court against the theory that a plaintiff can recover if his negligence directly contributed to the accident, if the defendant was neither reckless, wanton or willful. [Roenfeldt v. Railroad, 180 Mo. 551, 565.] We cannot assent to the proposition that a party whose negligence causes injury can recover from someone else, as instruction “E” said plaintiffs might. The instructions were complete with out said clauses and misleading with them. It was sufficient to tell the jury that if the plaintiff moved on the track, as the instructions assumed (that is, carelessly and without looking and listening for a car) nevertheless he might recover if the motorman could have stopped the car and averted the casualty. There is evidence in this case tending to convict the motorman of reckless or wanton misconduct, and we will not say there could be no recoveryqf plaintiff’s negligence directly contributed to his injury. There could not be if the motorman was simply negligent, but might be if he was wanton or willful. But it served no' useful purpose to require more of the jury than a finding that plaintiff carelessly drove on the track and that while he was there, the motorman — 513 — could have avoided running against him by using the means at his command. The judgment is reversed and the cause remanded. All concur.