Cool v. Petersen

NORTONI, J. This is a suit for damages accrued on account of personal injuries received because of the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal. It appears that plaintiff was injured through being run upon by defendant’s automobile while he was in the act of crossing St. Louis avenue on the west side of Vandeventer avenue in the city of St. Louis, at the place commonly used by pedestrians. Plaintiff was a passenger on an eastbound street ear immediately before his injury. The street car company maintains double tracks in St. Louis avenue, running east and west. The south track is occupied by eastbound cars while the north track is occupied by westbound cars. Plaintiff was a passenger on an eastbound car and alighted therefrom at the usual stopping place for such cars, on the west side of Vandeventer avenue, which runs north and south, but in St. Louis avenue. He passed out of the front door of the street ear, as is usual, and while it yet was standing, walked immediately around the front end of the car with a view to pass over the crossing for pedestrians to the northwest corner of St. Louis and Vandeventer avenues, intending to take a Vandeventer car south on Vandeventer avenue. Immediately as he emerged from in front of the car from which he had alighted, defendant’s automobile, going eastward at a high rate of speed, ran upon him and inflicted the injuries complained of. The collision occurred in the early evening on a Sunday, and it was raining at the time. The evidence for plaintiff tends to prove — and a number of witnesses who were present all speak to the same effect — that defendant was running his automobile at a speed of about thirty-five miles per hour at the time and he sounded no warning whatever of its approach. The automobile had been following the street car and on the same track with it for several blocks, but upon the slowing down of the street car, — 725 — •defendant left the south, or eastbound, track by turning to the left, about a half block before reaching the point of collision and ran eastward on the north — that is the westbound — track at the high rate of speed above mentioned. A number of witnesses for plaintiff say the automobile was not only running at about thirty-five miles per hour, but that no warning signal whatever was given, and it appears that plaintiff walked on the track after coming around the forward end of the street car from which he had alighted, some six or eight feet in advance of the approaching automobile. On the part of defendant, the evidence tends to prove that while the automobile was going eastward on the northmost, or westbound, street car track, warning was given immediately before by sounding the horn attached, and also that the rate of speed was moderate. But be this as it may, the case was clearly one for a jury and so much seems to be conceded in the briefs of counsel, for no argument is advanced to the contrary. The principal argument for a reversal of the judgment relates to several instructions given on the part of plaintiff, because they appear to be abstract declarations of law without reckoning closely with the facts, and a trivial suggestion is directed, too, against the first instruction given by the court of its own motion. To the end of considering these arguments, we set forth the first instruction complained of, which is as follows: A-l. “The court instructs the jury that if you find and believe from the evidence that St. Louis avenue is a public street in the city of St. Louis, crossing another public street known as Vandeventer avenue, and that said streets at the place of their intersection are much used for travel, and if you further find and believe from the evidence that on or about the 21st •day of April, 1912, the defendant was running and operating the automobile mentioned in the evidence, — 726 — running the same upon and along St. Louis avenue in an eastwardly direction from a point west of Vandeventer avenue, and if you further find from the evidence that at said time the plaintiff was lawfully upon said St. Louis avenue and attempting to cross said street at or about its intersection with the west line of Vandeventer avenue, and you further find that at said time and place the defendant approached said west line of Vandeventer avenue in his automobile,, and that he then and there negligently and carelessly operated said automobile by running it at an excessive, high and dangerous rate of speed and by failing to check the speed thereof, as it approached said west line of Vandeventer avenue; or carelessly and negligently failed to give a warning or signal of the approach of the automobile as it approached said west line of Vandeventer avenue; and if you further find that by reason of such acts or either of them the defendant’s automobile ran into or against plaintiff and injured him, and if you further find from the evidence that plaintiff was exercising ordinary care for his own safety, then your verdict must be for plaintiff.” . This instruction was given by the court of its own motion and submits the precise specifications of negligence relied upon in the petition and so thoroughly developed in the evidence. It is proper in every respect, for it requires the jury to find the acts of negligence alleged and established at the trial. But the instruction is criticized because it is- said that it calls for a finding of fact on the part of the jury that Vandeventer avenue and St. Louis avenue, at the point of the collision, were public thoroughfares of the city of St. Louis at the time of the trial, without requiring a finding that they were such public thoroughfares at the time plaintiff received his injury. This argument is wholly without merit, for the case throughout concedes that both streets were' public thoroughfares. There was no issue concerning this matter in the case — 727 — and all of the evidence tends to prove that both'plaintiff and defendant were using the streets at the time of the collision as such. Furthermore, there is evidence that a dozen other persons were using the streets as such at that time and place. The other instructions against which an argument is directed are as follows: 2. “The court instructs the jury that any person operating an automobile running, on, upon, along or across a public road, street, or highway,-or place much used for travel, is required to 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, or traveling over, upon or across such public road, street or highway or place much used for travel. ’ ’ 3. ‘ ‘ The court instructs the jury that the plaintiff had a right to presume that no automobile would be run or driven upon a public street or highway, much used for travel, at a rate of speed that would be dangerous to people who may be crossing said street or highway at any usual or customary place for pedestrians to be, crossing said public street or highway. ’ ’ 4. “The court instructs the jury that the burden of proof is upon the defendant to show the plaintiff was guilty of contributory negligence, and unless he does so by a preponderance or greater weight of the evidence, then you should find for the plaintiff on that point. ’ ’ 5. ‘ ‘ The court instructs the jury that the plaintiff was only required to exercise ordinary care for his own safety in being upon or crossing over a public street or highway in said city of St. Louis.” It is urged that these instructions are mere abstract propositions and in nowise reckon with the facts of the case. Such may be true, but they portray the correct rules of law which obtain in this State in the circumstances of the case in judgment, when viewed — 728 — from plaintiff’s standpoint, and, wlien considered in connection with that given by the court and those of defendant, are well enough. Instruction number 2 above copied proceeds under our statute which imposes the obligation of the highest degree of care on one operating an automobile in the public streets or a place much used for travel, in order to prevent the injury or death of persons who are rightfully using the street as well. Instruction number 3 declares the familiar rule that one crossing á public street at the place commonly used by pedestrians for that purpose may presume, if he knows nothing to the contrary, that an automobile would not be driven there at a dangerous rate of speed and in an unlawful manner to threaten his safety. The instruction is peculiarly appropriate here for the reason that the evidence tends to show plaintiff was wholly unadvised as to the approach of the automobile, for it was passing the street car at the time on the left side, whereas it should have turned to the right if it passed at all, and, moreover, plaintiff emerged on the usual crossing from behind the street car where a pedestrian is not required to anticipate an automobile coming from that direction. In such circumstances he was authorized to presume, in' the absence of notice to the contrary, that defendant was neither violating the statute nor remiss in his common-law duty. [See Hodges v. Chambers, 171 Mo. App. 563, 579, 154 S. W. 429.] Defendant’s answer contained a plea of contributory negligence, and this being true, no one can doubt the propriety of plaintiff’s fourth instruction above copied, which informed the jury that the burden of proof was on defendant with'respect to that matter. The abstract declaration contained in plaintiff’s fifth instruction, to the effect that he was only required to exercise ordinary care for his own safety, was entirely proper in view of the fact that, perforce of the — 729 — automobile statute, a different obligation rested on defendant — that is, to exercise high care for the safety of pedestrians in the street — while plaintiff was charged with the duty to exercise ordinary care only. Although it be true that the practice of giving mere abstract propositions of law to the jury in instructions is usually condemned, and though a judgment should not be reversed for the refusal of the court to give an instruction asserting a proper principle in mere abstract form, these instructions, though abstract, appear well enough when considered together with that given by the court and those on the part of defendant, for it is clear they were in nowise misleading and, therefore, not prejudicial. The instructions are to be read and considered all together is the rule, and, when so considered, it appears the jury were well informed as to the true issue in the case and the law attending the rights and conduct of the parties. The court refused to instruct the jury at defendant’s request that the mere driving of an automobile in an eastern direction on the north side of the street is not negligence, and it is urged that this was error. But obviously the instruction was properly refused, for no one asserted that such was negligence and to have given it would have been misleading on the facts of the case as is revealed in all of the evidence. During the argument plaintiff’s counsel made the following statement to which defendant’s counsel objected at the time, and it is urged the judgment should be reversed because such was prejudicial, in that it tended to excite the passion and prejudice of the jury. We copy from the bill of exceptions precisely as it is all that appears concerning this incident: “Mr. Turner: There is only one way to preserve our lives and our wives, and that is to bring them— “Mr. Davis: I except as appealing to the passion and prejudice of the jury. — 730 — “Mr. Turner: — is to bring them down within the reason of the law and hold them to justice in the particular case. That is all I ask you gentlemen to do. Take the evidence; don’t disregard the human evidence; take it all . . . ” If these remarks were prejudicial — and we do not say that they were — the matter is not open for review here because it appears that defendant did no more than object without invoking a ruling of the court thereon and saving an exception to such ruling. It is true counsel said “I except as appealing to the passion and prejudice of the jury,” but when the word “except” is considered in the context as used it means no more than that counsel objected. In order that such a subject-matter may be reviewed here, it is essential for the counsel to object to the remarks'and then, if the court fails to reprimand the offender, except to such failure of the court to act on the matter. Here, no. ruling whatever was made by the court and no exception was saved to an adverse ruling. Neither does It appear that defendant excepted to the failure of the court to rule on the objection or reprimand counsel. Nothing more appears than that counsel excepted, which, standing alone, amounts to no more than an objection in the circumstances of the case, when considered together with the context in which it is employed. Such has been expressly determined by the Supreme Court in a similar case. The court there said: “Not only so, but the remarks of appellant’s counsel, to-wit, ‘I except to the statement,’ is by context shown to be merely equivalent to saying, I object to the statement.” [See Eppstein v. Mo. Pac. R. Co., 197 Mo. 720, 738, 94 S. W. 967.] See, also, Harding v. Mo. Pac. R. Co., 232 Mo. 444, 446, 134 S. W. 641, where it is said on this question that there must be both an objection to the remarks and an exception after the ruling of the court thereon, or for a failure of the court to act, in order to entitle the party to a review on ap — 731 — peal. It appearing, as it does, that nothing more than an objection was interposed, which was not ruled at all and no exception saved to the action of the court in failing to act upon the matter, the argument advanced concerning it is not re viewable here. The jnry awarded plaintiff a'recovery of $2250, hut in supervising the verdict the court required a remittitur of $750, which was entered. Thereafter judgment was entered in favor of plaintiff for $1500. It is urged this recovery is excessive, but we are not so per-, suaded. It appears that the force of the collision of the automobile with plaintiff was so great as to precipitate him forward from the place of collision to the center of Vandeventer avenue and that he received severe and painful injuries. Concerning a portion of his injuries plaintiff says: “I had my left hip joint very badly injured, as it shows; it is very weak yet, and never gave me any use. I can scarcely get around on my leg, and my left knee joint was injured and my ankle and my left elbow and arm, and my left shoulder and my back about my hip and my spine has been affected ever since, and it gives me pain both' day and night and mornings when I rise I got a stiff and ill feeling, which I never had before, and my head was badly cut.” Furthermore, he testifies concerning an injury to his bowels and that he has suffered with an affliction of the kidneys and also his nervous system ever since the injury. He earned from eighteen to twenty dollars per week before the injury, which occurred April 21,1912, and at the time of the trial, more than a year after, he was still unable to pursue his usual calling of a workman in a shoe factory. The evidence is that he was able to do no more than perform light services around a lunch counter owned-by his cousin. Obviously the verdict is not excessive. The judgment should be affirmed. It is so ordered. Reynolds, P. J., and Allen, J., concur.