Luecke v. United Railways Co.

REYNOLDS, P. J. (after stating the facts). — The sole ground of error assigned and relied upon in this court by counsel for defendant is as to the giving of the plaintiff’s second and third instructions, it being argued that the use of the words, “directly contributed,” contained in each of said instructions, was erroneous in the light of the decisions of this court in Schmidt v. St. Louis Transit Co., 140 Mo. App. 182, 120 S. W. 96; Wilson v. United Railways Co., 142 Mo. App. 676, 121 S. W. 1083, and of the Supreme Court in Hof v. Transit Co., 213 Mo. 445 and Krehmeyer v. St. Louis Transit Co., 220 Mo. 639, 120 S. W. 78. Reading the record of the evidence in the case in connection with the pleadings, and construing the instructions as a whole, we do not think that this case comes within the decision of the Supreme Court in the Krehmeyer cáse, which is really the deciding case, although that case is founded, so far as this point is concerned, mainly upon the Hof case. The Schmidt and Wilson cases follow the Hof and Krehmeyer cases. There are substantially three charges of negligence set out in the petition: First, failure to sound the gong or warning signal; second, failure to keep a proper lookout; third, violation of the speed ordinance. The court expressly directed the jury, in the third instruction given at the instance of the defendant, that the plaintiff’s right to recover in the case “is confined strictly to the charges of negligence submitted to you by [507] these instructions, and the plaintiff is not entitled to a verdict for any other alleged act of negligence on the part of the servant in charge of or operating said car than those acts of negligence submitted for your consideration herein.” In the Wilson case, the harmful use of the words “directly contributed,” was not overcome by other instructions given. In the Schmidt case the last chance doctrine was not involved; here it is, as well as violation of the speed ordinance. It is true that in instructions 2 and 3' given at the instance of plaintiff, the court used the words condemned in the Krehmeyer case, that is to say, “directly contributed,” but we think that consideration of the instructions taken as a whole, and of the pleadings and facts in evidence, and that must always be done, the error of the use of these words condemned in the Hof and Krehmeyer cases is not present in this case. The instructions in the Hof case were criticised because these terms, “directly contributed,” had been used and because the court said that under the instructions given, 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.” . . . “In other words,” says the court, “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 jury to a consideration of the acts of negligence stated in the petition, but 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.” That does not meet the facts in this case. In the majority opinion in the Krehmeyer case, after discussing Brennan v. City of St. Louis, 92 Mo. 482, and Zeis v. Brewing Assn., 205 Mo. 638, it is said: “As [508] before stated, in each and. every one of those cases the pleadings, evidence and instructions showed that the plaintiff was injured as the result, either of the concurring negligence of the defendant therein with that of some third person, or as the result of some independent cause, to which defendant’s negligence contributed; but in this case the pleadings, evidence, and instructions are silent upon that question, and left the jury in the dark to speculate and conjecture as to what the contributing cause was, if any, which contributed to appellant’s negligence, which resulted in respondent’s injury. . . . Now, bearing in mind the issues joined by the pleadings and the evidence which was introduced on each side, which tended to support the petition and the answer, and the total failure of the evidence to show any other contributing cause to respondent’s injury except his own contributing negligence, . . . (was wrong) for the reason that under the evidence there could have been no other cause which ‘directly contributed to cause said collision,’ except the contributing negligence of the plaintiff himself. That being unquestionably true, then we have an instruction telling the jury in one clause that the plaintiff must exercise reasonable care for his own safety, and in the next, practically telling them that if his own negligence (because there was no other shown), ‘directly contributed to cause said collision’ and injury, then they would find for the respondent. . . . Who can say the jury did not find and believe that the concurring negligence of plaintiffs and defendant caused the injury?” Judge Grave's, in his concurring opinion in the Krehmeyer case, says: “In the use of the words ‘contributed to cause’ in an instruction they should always be so safeguarded as to exclude the idea that the concurring negligence of plaintiff and defendant will permit a recovery.” In the case at bar, we think that this requirement of the court in the Krehmeyer case, which is the test, was fully met. The jury were distinctly confined to the [509] causes of the accident as set out in the petition and were distinctly confined to those causes, so that they were not left to wander in the indefinite and cloudy realms of speculation to hunt out the cause of the accident, the sole causes in this case, for there are three allegations of negligence, either of which, if proven, was sufficient to render the defendant liable, and they were specifically set out. Plaintiff had a right to recover if any one of them was proven, he being free from negligence. To have told the jury, finder this state of facts and of the pleadings, that they must find that only one of them or any one of them directly caused the accident, would have eliminated all the others and would have been error. We place our action in this case upon the sole and distinct ground that while the words “directly contributed,” are used in two or more of the instructions, other instructions which were given corrected this and so distinctly and so specifically limited and confined the jury to the acts of negligence alleged in the petition, that we think that the use of these words was harmless error and could not have misled the jury, and that the decisions in the Krehmeyer and other cases do not compel a reversal. We may further add that another feature of this case which brings it outside of the decisions in the Hof and Krehmeyer cases and cases following those, is the entire absence of any testirhony tending to show any negligence whatever on the part of the plaintiff which even in the most remote manner can be said to have contributed to the injury sustained. The most careful reading of the abstract presented shows this. At the time of the accident, plaintiff was outside of his buggy, leading the horse across or around a mudhole when the car of the defendant ran into the rear of the buggy and inflicted the damage. The judgment of the circuit court is affirmed. All concur.