McCloskey v. United Railways Co.

REYNOLDS, P. J. The facts attendant upon the accident in this case are practically identical with those in the ease of St. Louis Carbonating & Manufacturing Company v. United Railways Company of St, Louis, in which the opinion of this court was filed December 5, 1911. [See 162 Mo. App. 18, 142 S. W. 737.] The plaintiff in that case, owner of the horse and buggy, brought its action, for damages to them. In the case at bar plaintiff was riding in that buggy with his father, who was driving when that accident occurred, and this action is for damages for injuries sustained by plaintiff to his person. As the result of [587] tlie buggy being run into by the street car, plaintiff was thrown out of the buggy and injured. Damages are placed at $2000. In the St. Louis Carbonating & Manufacturing Company case, the court took the case from the jury by instruction. Holding that action error, we reversed and remanded the case. Here the court submitted the case to the jury on the evidence introduced by plaintiff, defendant asking instructions but introducing no evidence. The jury returned a verdict in favor of plaintiff for $1000, from judgment for which, after filing a motion for new trial and saving exception to that being overruled, having saved exceptions to the giving and refusal of instructions, defendant has duly perfected appeal to this court. Learned counsel for appellant, in the argument of the case before us, frankly stated that they were here practically asking for a reconsideration of the opinion in the St. Louis Carbonating & Manufacturing Company case. In support of this contention it is argued that the demurrer was rightly sustained in that case and should have been sustained to the evidence in this case, for, as is argued, it shows conclusively that the proximate cause of the collision between the car and the buggy was one that was completely without the control of defendant and for which it was not responsible. It is further argued that in the case at bar the court had erred in submitting to the jury, by the instruction given at the instance of plaintiff, the question of the motorman’s failure to stop his car after he saw or by the exercise of ordinary care could have seen the buggy had stopped on the tracks, counsel claiming that there is no evidence to support such an issue. On careful reconsideration of the opinion of this court heretofore rendered in the St. Louis Carbonating & Manufacturing Company case, supra, in connection with the brief and argument for the defendant in the case at bar, we adhere to what was said in that [588] case. As the facts are also there fully stated we see no occasion to do more than refer to that as here applicable. We will add this, however: Neither a street car nor any other vehicle has any monopoly in, or exclusive, right to, the use of the public streets and ways: both are licensees. Prom the necessities of the case, the street car’s use of the streets is confined to its tracks, and it cannot turn off of those tracks. Other vehicles have the use of the whole surface of the street, including'even that part covered by the tracks. The vehicle has no right to unduly obstruct the car in its movement along its tracks: it must yield to the car, in as far as is necessary, to enable the car to move, for a vast multitude of the public are interested in the prompt and unobstructed movement of the car. But when, from the surrounding circumstances, as for instance obstructions or inability of the preceding vehicle to turn out on account of torn up or obstructed streets, the vehicle cannot at once turn off of the track, the car is not to go on its way in its own time unmindful of this: it has no right, under such circumstances to run at such a rate of speed as will endanger the preceding vehicle. In brief, that time-honored maxim, “Sic utere tuo ut aliemim non laedas,” meaning that in the use of our property rights, we must have regard to the rights of others, is to be observed. Applying this to the case at bar, when under the circumstances attendant upon this accident, that is to say, a street car following a vehicle moving along a public street, that street obstructed on the sides of the track of defendant so as to render it almost impossible for the vehicle to turn out of the tracks, and with the knowledge common to all travelling over the streets, that under the ordinary conditions of traffic it was liable to a sudden stoppage, ordinary prudence demanded that those in charge of the following car should see to it that that car be kept under complete control, so that in case of a sudden stopping of the [589] vehicle in front of it, the street car itself conld be instantly stopped. There was evidence that such control was not present in this ease. In point of fact there was evidence that after colliding with the bnggy the car ran quite a distance beyond the place of collision. It thereupon became a question for the determination of the jury. Counsel for defendant claims that there was error in an instruction given at the request of plaintiff. The particular part of that instruction complained of is that which tells the jury they may find for plaintiff, if, among other facts to be found, they find that the accident occurred “by failing or neglecting to stop or check the speed of the said car within the shortest possible time and space after they (defendant’s employees in charge of the car) saw the dangerous situation of plaintiff’s buggy.” At the instance of defendant the court told the jury, by instruction No. 3, that if they found that the driver of the horse and bnggy “stopped upon the tracks immediately in front of defendant’s car,- and so close thereto as to make it impossible for the motorman to stop the ear and prevent a collision,” then their verdict must be for the defendant. Learned counsel for appellant claim that there was no evidence to support this part of plaintiff’s instruction and deny that the one is a mere converse of the other. Whether this danse in the very full and long instruction of plaintiff is within the evidence, we think that it is practically the converse of the very specific instruction given at the instance of defendant. If the evidence did not warrant plaintiff’s instruction it did not warrant that of the defendant. “Where a party has asked similar instructions to those given, he is in no position to complain.” [Whitmore v. Sup. Lodge Knights & Ladies of Honor, 100 Mo. 36, l. c. 47, 13 S. W. 495.] “A party will not be heard to complain [590] of an error which he invites or adopts.” [Phelps v. City of Salisbury, 161 Mo. 1, l. c. 14, 61 S. W. 582. See also Lange v. Missouri Pac. R. Co., 208 Mo. 458, l. c. 475, 106 S. W. 660; Tall v. Chapman, 66 Mo. App. 581; Walter v. Robertson, 107 Mo. App. 571, 81 S. W. 1183.] Moreover, the clause in plaintiff’s instruction of which complaint is made was but a part of a long’ instruction, no other part of which is complained of. The instruction given for defendant, which we have quoted in full, is a distinct instruction. But even if the one is not the converse of the other, we do not believe that under the evidence in the case and this part of the instruction of defendant, the jury was misled, or that the presence of this clause in the instruction of plaintiff is reversible eror. On consideration of all the instructions we hold that the case was pr°Perly submitted to the jury and their finding, supported as it is by the evidence, is conclusive. The judgment of the circuit court is affirmed. Nortoni and Caulfield, JJ., concur.