Bongner v. Ziegenhein

NOETONI, J. This is a suit for damages accrued on account of personal injuries received through defendant’s negligence in operating his automobile. Plaintiff recovered and defendant prosecutes the appeal. Since the appeal was perfected, the plaintiff departed this life, and the proceedings have been, and now stand, revived in this court in the name-of his administrator. Plaintiff, Julius Bongner, now deceased, was a passenger on a southbound street car on Grand avenue, destined to Magnolia avenue, in the city of St. Louis-. As the street car halted at the usual stopping place in Grand avenue at its intersection with Magnolia avenue, decedent stepped off of its forward platform and took about three steps toward the pavement when he was run upon and injured by an automobile driven by defendant. There are two street car tracks in Grand avenue, side by side. The southbound car, on which Bongner was a passenger, moved on the track farther west, and between the car and the curb, the space was from twelve to fifteen feet. It1 appears defendant had — 336 — been driving south following the street car for several blocks before he reached Magnolia avenue and at the crossing of both Shenandoah avenue and Sidney street, immediately before, he stopped his automobile while passengers alighted from the car, but the evidence tends to prove he did not do so at Magnolia avenue. However,, it does not appear that Bongner had any knowledge of the automobile or of its prior stops at the streets mentioned. When the car stopped at the usual stopping place at Grand and Magnolia avenues, Bongner took his exit thérefrom by means of the foremost platform. • Though Bongner testified that he looked both north and south on Grand avenue immediately before leaving the car and observed no conveyance, he said, too, that he looked directly west only, or the way he was going, as he got off the car and thereafter. In other words, after stepping from the car, he made no observations either north or south on Grand avenue for the approach of an automobile, and started to walk directly west to the curb, but upon taking the third step he heard a lady scream and was run upon by the machine. He did not see the automobile until the collision occurred. The evidence tends to prove that the automobile was running rather slowly — say about four miles per hour — at the time, and that no horn or other warning of its approach was sounded until the .scream of a lady who was a passenger therein, and this occurred about simultaneously with the collision. Though an argument is made to the contrary in support of the judgment, it is obvious that the petition lays specific charges of negligence against defendant. But, as we understand it, there are but two of these. It is averred therein that defendant neglected and failed to keep a sharp, diligent and careful watch and lookout for plaintiff and failed to sound a horn or bell or in any manner give him warning of the approach of the automobile when approaching such street crossing and regular stopping place for street cars over — 337 — which plaintiff was passing. Though this allegation seems to touch upon two omissions of duty, we regard it as declaring one compound negligent act only, and that relates to the omission to make observations for plaintiff’s safety and warn him of the approach of the automobile. The parties seem to have so understood the allegation and treated with it accordingly at the trial, as will be hereinafter more particularly pointed out. The second specification of negligence contained in the petition is to the effect that defendant negligently approached the street crossing, a regular stopping place of street cars, at a rate of speed'too high to be consistent with the safety of Bongner, a pedestrian, walking from the street car to the sidewalk. There is no direct evidence that' defendant omitted to keep a sharp and diligent lookout for persons alighting from the forward end of the street car, but obviously such may be inferred from the facts and circumstances in proof, for it appears that, though there was a horn attached to the automobile, it was not sounded, as is usual when persons are seen to be getting off a street car within the possible range of an approaching automobile. Furthermore, though it is said the automobile was running slowly, it was not stopped until it had passed about fifteen feet beyond the point of collision, and was then veered upon the curb. It is argued the court should have directed a verdict for defendant because it is said the proof fails to reveal a breach of duty on the part of defendant which operated prosimately to the injury of Bongner, and, second, because of his contributory negligence; but we are not so persuaded. The argument that the proof omits to disclose a breach of duty on the part of defendant assumes that there is no evidence in the record authorizing the jury to find defendant omitted to keep a diligent lookout, and assumes, too, that the rate of — 338 — speed of the automobile was in no sense a negligent one. Having assumed this, it is urged by counsel that the evidence reveals nothing more than a failure to sound the horn or other warning and that it appears Bongner’s injury could not have been avoided even though the horn had been sounded, for the reason the interim between his going into the danger zone and the collision was too short to enable either party to avert it. As before said, we are not prepared to accede to the proposition, either that there is naught in the case authorizing the jury to find an omission on the part of defendant to keep a diligent lookout, or that the speed of the automobile was a proper one in the circumstances •of the case. Touching these matters, it may be said that, under our statute, the law casts upon defendant the obligation, while operating his automobile in a public street, to exercise the highest degree of care for the safety of others. It is not to be doubted that the measure of care thus imposed is to be determined in the circumstances of the particular case in judgment, and, furthermore, that it was defendant’s duty to guard against all movements of persons likely to take place in the highway,- which a prudent man, exercising high care, should anticipate as within the range of reasonable probability and likely to occur according to the rationale of human experience. With these principles in mind, defendant’s conduct must be viewed in the circumstances of the particular case, and this involves knowledge on Ms part tka,t the street car, the rear of which he had been following along the side of the street, would probably stop at the usual place at Magnolia avenue for the purpose of discharging passengers, as it had done theretofore at Sidney street and Shenandoah avenue in his presence. He knew, too, for the law required him to anticipate as a reasonable probability, that passengers would take their exit from the forward end of the car as well as the rear, and walk in the street before him to the pavement, for such is the — 339 — usual course. In this view, the law cast upon defendant the duty, when exercising high care for the safety of others, to keep a diligent watch and lookout for persons stepping off of the car, and to sound the alarm as a warning of the approach of his heavy machine, and, furthermore, to propel the machine at such a rate of speed as would enable him, by exercising high care, to prevent injury to others. There is positive and direct -evidence that defendant omitted to convey a warning of his approach by sounding the horn attached to the machine, and the argument for a reversal of the judgment concedes -this to be true. But it is said the omission to warn is not available to plaintiff here, for the reason the injury could not have been averted though warning were given, and, therefore, this alleged breach of duty was not the proximate cause of the injury. This argument proceeds as though the duty to warn arose only as plaintiff stepped off of the car, but, obviously the view is an unsound one, for the obligation of high care on defendant required him to sound the warning from the time he S’aw the car slowing down to the end of making a stop at the usual place at Magnolia avenue. When the car commenced to slow down in the presence of defendant, he should have anticipated, as a reasonable probability, that passengers would be discharged from both the rear and the forward platform thereof and should have commenced giving the alarm of the approach of his automobile, for their protection. Had defendant commenced sounding the horn of the automobile at this time, it stands as a reasonable probability in the case that the attention of Bongner would have been attracted before he stepped off of the .car and into the street, or, at least, thereafter, in time to have evaded the collision. If, as defendant argues, this were the only breach of duty revealed by the evidence, we would regard it as amply sufficient to justify the court in refusing to direct a verdict. — 340 — But, aside from this,' it is entirely clear that the evidence tending to prove defendant breached his obligation to keep a diligent’ lookout and to operate the automobile at a moderate rate of speed, in the circumstances of the case, when the safety of others is considered, was sufficient for reference to the jury. Though it be true that the automobile was not running at a high rate of speed and that no one testified in direct terms defendant was remiss as to keeping a diligent watch for others, it was competent for the jury to infer from all of the facts and circumstances that these obligations were not observed by him. The facts that no alarm was sounded and that the machine ran fifteen feet before it could be stopped after colliding with plaintiff suggest with considerable force that defendant omitted to diligently look out for the stopping of the street car and the exit of passengers therefrom and that he omitted, too, to propel the automobile at a reasonable rate of speed in the circumstances of the case. It would seem that the precepts which inhere in the highest degree of care require one operating an automobile in a public street, where it is known a street car is slowing down for the purpose of discharging passengers, to both make such observations as will enable him to ascertain the presence of passengers alighting and reduce the speed of' the machine so that their injury may be averted by avoiding an actual collision. [See Brewster v. Barker, 113 N. Y. Supp. 1026.] Automobiles are ponderous and dangerous machines, possessing great power and speed and, therefore, threaten imminent hurt in a highway, if not properly controlled and conducted. While they enjoy the same right to the highway as that possessed by the pedestrian, no one can doubt that the measure of duty imposed by the law upon one operating an automobile is to be viewed and determined as commensurate with the risk entailed through the probable dangers attending the particular situation. [McFern v. Gardner, 121 Mo. App. 1, 97 S. — 341 — W. 972; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122.] Where the duty enjoined is an extraordinary one — as that pertaining- to the operation of automobiles —and the situation approached highly suggestive of hurt to others, we believe slight evidence may be sufficient to suggest a breach. From the facts that no alarm was sounded and, notwithstanding plaintiff’s alighting from the car in plain view, defendant was unable to stop the machine until fifteen feet beyond the point of collision and then only by veering it into the curb, it was competent for the jury to infer that a diligent lockout was not maintained and that the speed of the automobile was excessive, for, otherwise, the injury could no doubt, have been averted. Especially is this true, touching a place in the public highway where persons are known to be present, as in the process of alighting from a street car, for the measure of care with respect to their safety is to be determined in the circumstances of the case. [See Turney v. United Rys. Co., 155 Mo. App. 513, 515, 135 S. W. 93.] But, it is said, though the case is one for t'he jury as to defendant’s fault, the verdict should have been directed for defendant because of the fault of plaintiff in taking three steps into the street without looking-for an approaching automobile. This argument, we believe, assumes that plaintiff should conduct himself in a public street of a city identically as though he were approaching the crossing of a railroad, which is universally declared to be a signal of'danger at all times and to all competent persons. The precepts of natural justice alone forbid the application of this doctrine to one in the highway not shown to be fraught with great hazards, for the dangers t'o be encountered are by no means equal in character. We have heretofore declared that as to collisions in the highway, where both parties have a right to be, there is generally .a fair question for the jury both on the matter of defendant’s negligence and that of the contributory negligence of — 342 — the plaintiff. [See Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155.] Prom a further consideration of the authorities, we are persuaded that the cause is, indeed, an exceptional one where plaintiff’s right of recovery should be denied as a matter of law for his contributory negligence, when it appears he was run upon and injured in the highway by a conveyance which is not required to travel in a particular place, as street cars on the tracks, which, of course, of themselves suggest danger as always present. In other words, in those cases where injury is inflicted by a conveyance which may occupy one portion of the streePat one time and some other portion at another time and the injured person is not forewarned as by the danger incident to ear tracks, the matter of plaintiff’s contributory negligence is usually for the jury. There may be cases where the use of a public street by heavy and swift conveyances presents a condition of constant turmoil so threatening to the safety of pedestrians that a court would be justified in declaring one negligent in attempting to 'cross without looking and listening, but nothing of that kind appears here. There is naught in the record to suggest that Grand avenue was much used or frequented by automobiles or other conveyances and, therefore, an exceptionally dangerous place, and it appears that plaintiff made observations in both directions immediately before leaving the car. In such circumstances, we are unable to say as a matter of law that Bongner was unduly negligent in not looking and listening a second time upon stepping from the car before attempting to cross a space but twelve or fifteen feet to the curb, While the law imposed the duty of high care on defendant, the obligation of Bongner was only to exercise ordinary care for his own safety and that is the same care which an ordinarily prudent man would exercise toward looking and listening before attempting to pass but twelve or fifteen feet to the curb. [See — 343 — Groom v. Kavanaugh, 97 Mo. App. 362, 71 S. W. 362.] It appears that courts of high authority entertain the-same view with respect to the conduct of a passenger who alights from a street car for the purpose of walking to the curb. Touching this matter, the case of Brewster v. Barker, 113 N. Y. Supp. 1026, 1028, is almost directed in point. The court, in that case, says: “The plaintiff did say that just as he stepped upon the ground from the car he did not look to the right or to the left to see if an automobile or other-vehicle was approaching; that he looked straight ahead' in the direction where he was going, to wit, the other side of the street. His evidence indicates that he did just what any other intelligent man, in the exercise of' ordinary care and prudence, would have done under the circumstances. He wanted to cross the street to reach the other sidewalk, and he looked straight ahead, following other passengers as he says, who alighted from the same car upon which he had been riding. Is he chargeable with negligence because he did not observe that an automobile going at the rate of speed of six or seven miles an hour was coming along the side-of the car upon which he had been riding, and in such close proximity as to strike him practically the moment that his feet touched the pavement? "When a car stops and it is announced that passengers are to-alight, we think the passenger has a right to assume-that it is safe for him to so alight in the ordinary manner. Upon the evidence submitted to the jury in the municipal court, #we think it is entirely competent for them to have found that the plaintiff was not guilty of contributory negligence, and such as to prevent a recovery in this case. Indeed, we think any other finding would have been contrary to the evidence.” Here, plaintiff had taken but three steps from the ear when the automobile ran upon him, and it appears that the collision occurred immediately after the act of alighting, or, in other words, possibly with — 344 — in two ox three seconds of time. Obviously, ordinary care did not require plaintiff to constantly look and listen for an approaching conveyance in the highway, and if, as he testified, he had done so immediately before leaving the car, we cannot declare that an ordinarily prudent person would have done more. For, as said by the Supreme Court of Michigan, in Gerhard v. Ford Motor Co., 20 L. R. A. (N. S.) 232, “There is no imperative rule of law requiring a pedestrian, when lawfully using the public ways, to be continuously looking or listening to ascertain if auto cars are approaching, under the penalty that, upon the failure so to do, if he is injured, his own negligence must be conclusively presumed.” It is entirely clear that both the question of defendant’s negligence and that of plaintiff’s contributory negligence were for the jury. Plaintiff’s first instruction is as follows: “The court instructs the jury that if yomfind from the evidence that the plaintiff on the 7th day of July, 1907, got off a southbound street car at its regular stopping place, on Grand avenue, at or near the intersection of Magnolia avenue, and exercising ordinary care, started to walk westward toward the sidewalk or curb on the west side of Grand avenue, and that Grand and Magnolia avenues were intersecting public streets in the City of St. Louis, Missouri, and were at said time and place much used for travel, and if you find from the evidence that the defendant was operating or driving an automobile southwardly on said Grand avenue, at said time and place, and that his automobile struck the plaintiff and caused him to be thrown to the ground and injured, and if the jury further find from the evidence that the defendant, by the exercise of the highest degree of care that a very careful person would use under like or similar circumstances, could have prevented and averted the injury to plaintiff, and failed to do so, the jury will find in favor of the plaintiff and assess his damages as hereinafter instructed.” — 345 — It is urged the judgment should be reversed because of the general character of this instruction. This. argument insists that there are three specific acts of negligence assigned in the petition, but, as we view it, there are two only. The first of these declares a compound negligent act on the part of defendant in failing-to make observations for Bongner and to warn him of the approach of the automobile. The second specification of negligence relates to a.1 breach of duty on the part of defendant in running his automobile at the place in question at a rate of speed too high to be consistent with the safety of Bongner, a pedestrian, walking from the car to the sidewalk. Because of the specific acts of negligence so assigned, it is urged plaintiff’s first instruction must work a reversal of' the judgment, for it is said it permitted the jury to find defendant liable for any breach of the obligation of high care which it may conjecture, without regard to the specific negligent acts charged. There can be no doubt that such instructions are frequently condemned in cases where nothing- appears in the instructions for defendant to limit the investigation of the jury to the precise acts of negligence complained of. If the general character of this instruction were not modified by one given for defendant, which pointed out with precision the negligent acts relied upon, we would be compelled to reverse the judgment, for such is the rule of decision, as will appear by reference to Beave v. St. Louis Transit Co., 212 Mo. 331, 111 S. W. 52. See, also, Miller v. Rys., 155 Mo. App. 528, 134 S. W. 1045, to the same effect. But, at defendant’s request, the court in plain terms pointed out the negligent acts relied upon by plaintiff for. a recovery to be the operation of the automobile at a high rate of speed and without sounding the horn or in any manner giving warning of its approach. Defendant’s instruction touching this matter is as follows: “The court instructs the jury that in — 346 — this case plaintiff seeks to recover damages against defendant for personal injuries -which plaintiff says he received in consequence of defendant’s negligence, which negligence, according to the contention of plaintiff, consisted in defendant’s operating an automobile in a southward direction on the west side of Grand avenue, at or near Magnolia avenue, on or about the 7th day of July, 1907, at a high and dangerous rate of speed and without sounding the horn on said automobile, or in any manner giving plaintiff warning of its approach. It is incumbent on plaintiff to reasonably satisfy the jury by the evidence of the existence of these facts, before they can return a verdict against the defendant, and if the jury should find and believe from the evidence that defendant was not operating o.r running the automobile at a high or at a dangerous rate of speed and that he did sound the horn thereof or otherwise gave plaintiff warning of its approach, then it will be the duty of the jury to return a verdict in favor of the defendant.” Moreover, by this instruction the jury were expressly told that unless the defendant was operating or running the automobile at a high and dangerous rate of speed and that he did not sound the horn thereof or otherwise give plaintiff warning of its approach, the finding should be for defendant. If the general instruction for plaintiff were radically wrong in theory or prejudicial as to the facts hypothesized therein, it may be that a proper one on the part of defendant would not cure such defects, but here the instruction for plaintiff is well enough in its general scope and faulty only in so far as it omitted to confine the investigation by the jury to the acts of negligence relied upon. There can he no doubt that the instructions must all be read together and when this is done, the fault of plaintiff’s instruction is clearly supplied by the limitations and requirements in that of defendant. In Johnson v. St. Louis & S. F. R. Co., 173 Mo. 307, 73 S. W. 173, where an instruction given — 347 — for plaintiff authorized his recovery as for general negligence and was, therefore, broader than the petition, the Supreme Court declared the rule to be that such matters are cured by instructions given for defendant which limit the right of recovery to the specific negligence charged in the petition. In Logan v. Met. Ry. Co., 183 Mo. 582, 608, 82 S. W. 126, the doctrine is reasserted with approval by the same court. [See, also, Dye v. Chicago & A. R. Co., 135 Mo. App. 254, 258, 2591, 115 S. W. 497.] Under these authorities, we are not permitted to say that the jury were misled or authorized to return a verdict for negligent conduct which it might conjecture without regard to the acts alleged. But it is suggested defendant’s instruction above copied does not confine the jury to an investigation with respect to all of the acts of negligence alleged in the petition, for it omits reference to that portion of the first allegation of negligence which deals with the omission of defendant to keep a diligent lookout, etc. Obviously this portion of the allegation is but inducement to the subsequent words thereof relating to the omission to warn by sounding the horn or otherwise. The parties so treated this allegation at the trial, for by reading defendant’s instruction above copied, it deals alone with the matter of dangerous speed and the omission to warn, without regard to what is said in the petition about the failure to keep a diligent lookout. As defendant construed the petition and defined its averments, in this instruction, he conceived the omission to warn to be the only matter of substance involved in the first assignment of negligence. That plaintiff regarded the first specification of negligence as a compound one, charging the ultimate breach of duty as a failure to warn Bongner of the approach of the automobile, seems clear from his fifth instruction. After hypothesizing the facts, that instruction authorizes a verdict for plaintiff only upon its appearing to the jury that he was exercising ordinary care and defendant — 348 — “failed to keep a sharp and diligent lookout for plaintiff and failed to give the plaintiff any warning of the approach of his automobile” and that such failure was' the direct cause of the injury. From the use of the conjunctive “and” in the portion of the instruction quoted, it is obvious plaintiff did not regard the first-assignment of negligence as setting forth two separate breaches on which he relied for a recovery, but, instead, he compounded them into one, as for a failure to warn, and treated the antecedent words touching the diligent lookout as merely inducement to such failure to warn. There can be no doubt that the parties treated the petition at the trial as setting forth but two specific acts of negligence and though these were not referred to in plaintiff’s first instruction, they were clearly defined and the recovery limited thereto by defendant’s instruction above copied. Indeed defendant’s instruction required the jury to find both before a recovery could be had, whereas the finding of one as proximate would suffice. Plaintiff’s fifth instruction is criticized in so far as it seems to impose the duty on defendant to keep “a sharp and diligent lookout for plaintiff.” As before said, no recovery was authorized for such failure alone, but the right was coupled with the failure to warn. However this may be, we do not .regard those words objectionable when considered under our statute' imposing a very high degree of care upon defendant.At common law, the obligation is to exercise ordinary' care, and an ordinance of the city of St. Louis employs the term “vigilant” with respect to the watch a motor-' man should keep for others. As to this, the courts declare the words “vigilant watch,” employed in an instruction, to be unobjectionable, as it is said they impose no more than the duty of ordinary care in proper-circumstances. [See Kaiser v. United Rys. Co., 155 Mo. App. 428, 135 S. W. 90; Hovarka v. St. Louis Transit Co., 191 Mo. 441, 454, 455, 456, 90 S. W. 1142.] — 349 — Our statute (Sec. 8523, R. S. 1909) provides that a person operating an automobile on a public highway “shall use the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury or death to persons on . . . highways or places much used for travel.” For a breach of this obligation, it declares damages may be recovered by the person injured. Obviously, the highest degree *of care that a very careful person would use, under like or similar circumstances, requires of the person operating the automobile a sharp and diligent lookout for persons in the public street. Indeed, we believe that nothing less than a sharp and diligent lookout, as those words are commonly understood, satisfies the terms of the statute above quoted. Plaintiff’s fourth instruction is as follows: “The court instructs the jury that the plaintiff had the right to leave the street car from its front platform.” This declaration is criticized as unduly emphasizing a matter not in issue in the case. There can be no doubt that though the abstract proposition of law so stated is a correct one, it would have been well enough to refuse this instruction, for the reason no issue pertained to that matter; but manifestly it would be a technical ruling, subversive of justice, to reverse the judgment because of this instruction, even though the subject-matter referred to was conceded at the trial. Obviously it was harmless. By the terms of the statute (Sec. 2082, R. S. 1909), we are forbidden to reverse judgments except in those cases where we believe error has intervened in such a manner as to materially affect the merits of the controversy against the rights of the appellant. The point is wholly without merit. Though defendant urges otherwise, all of the instructions for plaintiff sufficiently require the jury to find that Bongner was exercising ordinary care for his own safety at the. time of his injury. Besides, defendant’s instruction clearly directed that plaintiff was — 350 — not entitled to recover unless lie was exercising ordinary ca.re for Ms own safety at the time of his injury. The fact that an instruction authorizing a recovery for negligence omits to require the jury to find the injured person was not negligent for his own safety is not reversible error when it appears that question was properly submitted in other instructions for defendant, for all must be read together. [See Johnston v. St. Louis & S. F. R. Co., 150 Mo. App. 304, 130 S. W. 418.] The judgment should be affirmed. It is so ordered Reynolds, P. J., and Caulfield, J., concur.