Kaiser v. United Railways Co.

CAULFIELD, J. (after stating the facts). — I, Defendant assigns as error the action of thé trial court in overruling defendant’s challenge of three jurors on the ground that each of them had served on a jury within 12 months next preceding the d’ate of trial. The evidence showed that each of them had been summoned for jury service for one week beginning with Monday of the week in which this case was tried and that they had sat upon juries during that week but that they had not served upon any jury -within a whole year prior to Monday of that week. The question involved in this assignment of error received the consideration of the Springfield Court of Appeals in the recent case of Blyston-Spencer v. United Railways Company of St. Louis, 132 S. W. 1175, 1177. On a review of the authorities and statutes that court held that the language of section 6547, Revised Statutes 1899, which is now section 7342, Revised Statutes 1909, “And it shall be the duty of every court of record in said city to excuse from service as a juror every person who, being examined on the voir dire, shall appear to the court to be a person whose name ought not to have been placed upon the jury list under the provisions of this article, or who served on any jury in any court of this state within twelve months next preceding, if challenged for that cause, by either party — 436 — to the suit; and the court may excuse such person without challenge by either party,” means -within twelve months from the date the juror began service as a juror on the regular panel and not twelve months next preceding the date of the trial. The conclusion arrived at in that case on this' question meets with our approval, and this assignment of error is not sustained. II. Defendant assigns as error the action of the trial court in refusing to direct the jury to find a verdict for it. It is difficult to imagine a case where such a direction would have been more uncalled for than in this. While the petition purports to declare on the “Vigilant Watch Ordinance” and also upon the “humanitarian or last chance doctrine,” as if they were separate and distinct in their nature, the two were, in effect, the same, The oi?dinance “is simply declaratory of the municipality’s approval of what is commonly called the ‘humanitarian or last chance doctrine.’ ” [Gebhardt v. St. Louis Transit Co., 97 Mo. App. 373, 380, 71 S. W. 448; Mertens v. Transit Co., 122 Mo. App. 304, 312, 99 S. W. 512.] The parties recognize this and agree that the only assignment of negligence' proper to be considered by the jury were, failure of the motorman to keep- a vigilant watch, and failure to stop the car within the shortest time and space possible, etc. Defendant contends that neither of them was sustained by the proof. Its theory is that the most vigilant watch on the part of the motorman would not háve prevented the accident because it was too dark to see more than a few feet and the deceased darted out upon the track so suddenly and so immediately in front of the approaching car that to strike him was unavoidable. There was some evidence tending to prove that the dusk of the evening made objects indistinguishable unless very near, but there was also ample evidence to the contrary. It was testified in behalf of the plaintiffs and entirely uncontradicted that the view of the motorman as he approached the — 437 — place where the boy was run over, was unobstructed for some eight hundred feet, and two witnesses for the plaintiffs testified that even after the boy was run over it was light enough to see clearly for over 150 feet in any direction. There was also some evidence that deceased ran on the track so immediately in front of the approaching car that the motorman had no reasonable opportunity to stop in time to avoid injuring him, but here too there was ample evidence tending to prove the contrary. While the motorman’s testimony is somewhat obscure and contradictory, he did testify quite clearly that he saw the boys running along the pavement and that he saw James run out into the street from the sidewalk. He also testified quite emphatically that the front part of the car was only fifteen feet north of Milentz when James left the sidewalk to run toward the track. The jury were justified in accepting these statements as true, while at the same time rejecting, as inconsistent with the physical facts and other testimony, this interested witness’s testimony that the boy ran very suddenly upon the track from a point opposite the grocery and only twenty feet north of the car. Gussie, the dead boy’s playmate, testified that James started on a slow run from a point 105 feet north of Milentz or ninety feet north of the point where the motorman says the front of the car was at the time; that he ran at an angle northeastwardly toward the north-bound track. The position of the body when found and the blood stains to the south indicate that James reached the track at a point about 160 feet north of Milentz or 145 feet north of where the motorman says the front of the car was when he saw the boy start toward the track. We deem the proof most persuasive that the motorman made no effort to stop, until just before, if not after, he had run the boy down. The man on the sand box, testifying for defendant, said that the boy did not come on the track until the car was within four feet of him. The defendant’s, witnesses agreed that it was a very sudden — 438 — stop, yet when the stop was completed the front of the car was at least forty-two feet beyond where the boy’s body lay and some fifty-four feet beyond where the first spatter of brains and blood were found, and about 200 feet north of where the motorman testified the front of the car was when the boy started toward the track. That James started from the point where Gussie said he did and that the car was only fifteen feet north of Milenta when James started, is borne out by a comparison of the speed of the car and the speed of the boy. The motorman said that the boy was going about half as fast as the car. Then while the car was going 145 feet the boy must have gone some 72 1-2 feet, which in the direction he was traveling and allowing for him not running in a perfectly straight line, and for slight inaccuracies in the estimates of distances and speed, was approximately the distance between where Gussie said he started from and the point where the.first blood and brain spatter was found on the track. It may then be said that the jury was justified in finding from the evidence that the motorman traveled about 140 feet, and until it was too late, without attempting to stop, and all the time he saw, or by the exercise of ordinary care could have seen, this child running into a situation of great peril, and he in charge of a car which could have been stopped within twentvrfive feet. III. The defendant asserts that the court erred in giving instruction No. 1 in behalf of plaintiffs. The defendant complains first, that the instruction “assumes defendant’s motorman failed to keep a vigilant watch.” After requiring the jury to find that the car “was allowed to strike and cause the death of said James Kaiser,” etc. the instruction requires them to “find from the evidence that said car was so allowed to strike and cause the death of said James Kaiser, in consequence of the failure of the motorman of defendant operating same immediately prior to such casualty to beep vigilant watch,” etc. This last quoted part of the instruction — 439 — is the part which defendant contends “assumes defendant’s motorman failed to keep a vigilant watch.” The language is not susceptible of that construction. It required the jury to find the fact claimed to have been assumed by it. The jury could not find that the car was allowed to strike and cause the death of James in consequence of the failure of the motorman to keep a vigilant watch without finding that he was guilty of such failure. Instructions similar in regard to this feature were sustained in Geary v. Kansas City, O. & S. R. Co., 138 Mo. 251, 259, 39 S. W. 774; Phippin v. Mo. Pac. Ry. Co., 196 Mo. 321, 348, 93 S. W. 410; Dammann v. City of St. Louis, 152 Mo. 186, 198, 53 S. W. 932. Defendant also complains of that part of this instruction which required of the motorman the duty “to stop said car within the shortest time and space possible with the means at his command, upon the first appearance of danger to said James Kaiser” etc., contending that it imposes the duty to exercise the highest- degree of care to stop the car, while the law imposed the duty to exercise only ordinary care to stop the car. If the words “to stop in as short a space and time possible” are construéd as signifying to stop in as short a space and time as the employment of the most expert motorman, the use of the most approved appliances and the presence of the most ideal conditions, would permit, then the instruction might be said to impose an excessive degree of care upon the defendant. That would be construing them to require whatever was attainable by the utmost human endeavor and foresight. But that is not the meaning to be given them here. They are not stronger words than “forthwith,” “immediately” or “as soon as possible,” to which, in proper cases, the courts have refused to give any such extreme meaning. Where contracts have required notice to be given, or accounts to be rendered, goods to be shipped, or work to be done, “forthwith,” “immediately,” or “as soon as possible,” they have been construed to require such notice tc be — 440 — given or things to be done, with “due diligence under the circumstances of the case;” “within a reasonable time;” “as soon as it could be under the circumstances,” or “as soon as practicable.” [Phillips v. Protection Ins. Co., 14 Mo. 220, 231; McFarland v. Association, 124 Mo. 204, 27 S. W. 436; Palmer v. Insurance Co., 44 Wis. 201, 208; Arthur v. Wright, 10 N. Y. Supp. 368, 369; Pope v. Filley (U. S.), 9 Fed. 65, 70.] We are not citing these cases or quoting from them as furnishing any hard and fast definition or rule, but we do think they indicate that expressions akin to the one we are considering are to be construed in the ordinary reasonable sense in which such expressions are used in the ordinary language of life. Being used with a definite suggestion of concrete ways and means, they are to be understood as having reference to such ways and means and not to some other, ideal ways and means. No reasonable man could have understood the court to mean anything else than that it was the duty of the motorman, after the danger to the child became apparent to him, to stop the car as soon as he could, considering its size, the grade of the street, the car’s speed, its brakes and other equipment, the ease with which it could be stopped, and the motorman’s strength and ability. To require that duty of him was to require of him what was merely the ordinary care imposed upon him by the law, under the circumstances. The language used by the instruction has been approved by our Supreme Court as being more intelligible, when applied to a case like this than the technical term “ordinary care” and its stereotyped definition. [Hovarka v. Transit Co., 191 Mo. 441, 454, 90 S. W. 1142; See, also, Spencer v. Transit Co., 222 Mo. 310, 324, 121 S. W. 108.] This assignment of error is not well taken. We have given due consideration to all the questions raised by counsel for defendant, but find no reversible error in the case. The judgment is affirmed. Reynolds, P. J., and Nortoni, J., concur.