Carradine v. Ford

REYNOLDS, P. J. This is an action to recover damages for injuries said to have been sustained by plaintiff, while, as a pedestrian, she was crossing at the intersection of Washington and Pendleton avenues, public streets in the city of St. Louis, by being struck by an — 691 — electric automobile, which ran into and knocked her down, seriously injuring her. The accident occurred on October 27, 1912. (In certain paragraphs of the petition the accident is laid as having occurred October 11, 1912. This, however, is evidently a clerical error, as the uncontroverted evidence is that it occurred on October 27 of that year, so in referring to the date, we will treat it as of October 27 instead of October 11.) It is alleged that the electric automobile was at the time owned by the Priesmeyer-Stevens Automobile Company, but at the time of the accident was in the charge and control of defendant John W. Ford, Jr., under some arrangement between him and the automobile company pending the purchase of another car from that company by Mr. Ford. As the cause was dismissed as to the Priesmeyer-Stevens Automobile Company on demurrer, and plaintiff having failed to plead further as to that defendant, judgment was entered in its favor. No error is assigned to this, so it is unnecessary to notice the connection of that company with the case. At the time of the accident the automobile, it is charged, was being run by Mrs. Flora L. Ford, the wife of the defendant John W. Ford, Jr. It is averred that at the date of the accident there was in force in the city of St. Louis, “an ordinance which, among other provisions, provided that drivers of motor vehicles shall, when approaching a crossing on the public street, sound their signal in such a way as to give warning- to other vehicles and to pedestrians of their approach. There was also on said date an ordinance in force in said city which provided that no automobile', motor vehicle, locomobile, or horseless vehicle, propelled by the use of electricity, gasoline or steam, shall be moved or propelled along, over, or upon any public street, avenue, boulevard or other public place at a greater rate of speed than is reasonable, having regard to the traffic and use of such street, avenue, boulevard or public place, or so as to endanger the life or limb of any person, and shall not in any event, while upon any such street, ... be moved or propelled at a greater rate of speed than eight miles an hour in — 692 — the business portions of said city, and not greater than ten miles an hour in other portions of said city.” It is alleged that the point at which the accident occurred, that is to say, the intersection of Washington and Pendleton avenues, was not in the business portion of the city and that Pendleton avenue is a north and south, and Washington avenue an east and west street. It is further averred that under the laws of this State and at the time set forth in the petition, it was the duty of persons owning, operating or controlling an automobile upon any public street,, avenue or other place much used for travel, to use the highest degree of care that a very careful person would use under like or similar circumstances to prevent injury to persons on such street, and on approaching a pedestrian on the travelled parts of a highway, and upon approaching an intersecting highway, to slow down and give a timely signal. Averring that at the time of the. accident plaintiff was a pedestrian crossing Washington avenue southwardly upon the east crossing of Pendlton avenue at Washington avenue, where, as it is averred, by the exercise of orr dinary care, she could have been seen by Mrs. Ford in ample time to have avoided all injury to her, it is charged that Mrs. Ford, in violation of the duty imposed by law and ordinances upon persons owning, operating or controlling an automobile running along, over and upon a public street or avenue, as above set out, negligently and without using the care required by law to prevent injury to plaintiff, ran the automobile at a high and dangerous rate of speed and at a rate in excess of ten miles an hour and without sounding any warning and without slowing down as she approached the crossing, into and upon plaintiff, and with great force and violence striking her, knocking her down and seriously and permanently injuring her. Stating the extent and duration of her injuries and -loss of her earnings in her professional work as a musician, damages are laid at $30,000, for which she demands -judgment The answer, after a general denial, pleads contributory negligence on the part of plaintiff. — 693 — A reply in general denial of the affirmative defense was filed. By stipulation between counsel and before a trial, the petition was amended bv inserting in it an averment to the effect that on the date of the accident there was also an ordinance of the city in force which provided that a vehicle, except when passing a vehicle ahead, shall keep as near to the right-hand curb as possible. By like stipulation there was also inserted in the petition the words, “and without keeping as near as possible to the right-hand curb of said avenue,” coupling this with the charge that Mrs. Ford, in violation of the city ordinance and the law, was driving at a rate in excess of ten miles an hour and without sounding any warning, and without slowing down as she approached the crossing. At the trial before the court and a jury, a verdict was returned in favor of plaintiff and against the defendants John W. Ford and his wife, for $3500, judgment following. Interposing a motion for new trial, as well as one in arrest, and these being overruled, the defendants have duly appealed to our court. Three errors are here assigned. The first is, that the trial court erred in overruling appellant’s demurrers at the close of plaintiff’s case and at the close of all the evidence offered, because respondent was guilty of gross negligence which directly contributed to her injuries. On a careful reading of all the testimony offered in behalf of plaintiff, and that is the testimony to be considered in passing on this demurrer, we are unable to hold, as a matter of law, that plaintiff was guilty of contributory negligence. Tier own testimony is that she was a young woman at the time of the accident about twenty-two years old, living on Morgan street, in St. Louis, and attending both as pupil and teacher a school of music situated in the Musical Arts Building, located on the corner of Boyle avenue and Olive street, in that city. She started from her home for that place, it being a little over three blocks south of her starting point, about eleven o’clock on the morning of October 27, 1912. that being a bright, clear day. She walked east to Pen — 694 — dleton avenue which was the first street east of her home, crossed to the east side of that street at Delmar, the next street south of Morgan, and walked along the east sidewalk of Pendleton avenue after crossing Delmar, until she reached the intersection of Pendleton with Washington, the Musical Arts Building being on Olive street and about a quarter of a block east of the intersection of Pendleton and Olive. When she reached Washington avenue and before she stepped off the curb, she looked west and saw an automobile coming from the west along Washington not very far west of Pendleton. She stepped off of the east sidewalk or curb of Pendleton and into Washington and waited for this machine, which was propelled by gasoline power, to pass. When it had passed she started to walk straight across Washington in a straight line from the east pavement on Pendleton. She testified that when she reached the curb of Pendleton and Washington, and was about to step into the street — Washington avenue — she looked west along Washington and “had an impression” that when she looked west up Washington avenue she saw a second automobile behind this gasoline machine but some great distance back of it. As she testified, “It was so far down the street that I didn’t pay any attention to it, much; but I just remember that there was another machine in the distance.” She could not swear positively that that was the machine that hit her, for she was knocked senseless. She testified that she had heard no noise from any approacing machine or signal of any kind, either the sounding of a gong or ringing of a bell; that she was accustomed to automobiles and to their signals; that Washington avenue, as she knew, was a travelled highway and used a great deal by automobiles. She again testified, when asked if she knew what struck her, that she had seen this electric automobile an instant before it struck her; turned her head just before that and got the impression that the machine was close to her, but the striking was so sudden that it was a mere impression as to the machine which struck her, but she saw that there were several women in it. She repeated — 695 — that she did not remember the fact of being struck, for she was knocked unconscious and the next thing she remembered was when she came to herself in the hospital. She testified that after the first automobile, the one driven by gasoline, had passed, while she could not be definite, she thought she had taken only a few steps from the sidewalk into the street. The automobile that passed her was toward the center of the street, a little south of the center and going east, and she took several steps off the curb before she reached that automobile when she stopped to let it pass. She was struck, as near as she could tell, by the following automobile directly in the route which the first automobile had passed over; that is to say, the following automobile was traveling about in the tracks of the forward one. On cross-examination, plaintiff testified that after the gasoline car had passed, she started immediately to cross the street back of that car; that she did not look either way before' she did this; did not look for the following machine; that after the gasoline machine Siad passed her, she walked right on without looking, and started on across; had taken a few step's in the street when the following machine struck her. Asked if there was anything to prevent her seeing the following machine if she had looked, she said she supposed not; that if she had stopped where she was at the time the forward machine passed, she supposed the following one would have passed without hitting her; as she had not seen this following machine she could not tell how fast it was coming, but that when she did see it, and before she left the curb to cross over behind the forward machine, the electric automobile was so far west and down the street that she never thought of it; did not notice its speed; it seemed to her to be too far away to be able to cover the distance between where it was when she saw it and where she was attempting to cross the street; when she turned her head just before the electric struck her, it seemed to be coming fast, but she did not know its speed. Asked by the court if she had seen this following machine, the one that struck her, the first time' — 696 — she looked, she answered that she had a dim recollection of a second machine following the gasoline car further, down the street; she could not say exactly how far down but so far that the speed did not make any impression at all on her; it had passed Newstead avenue coming east, Newstead avenue being the street immediately west of Pendleton avenue, and was in the block between Newstead and Pendleton avenues, on Washington avenue, following the other machine, and when she saw it was about a block away from the gasoline car. Asked by the court how far behind the first machine it was when she saw it, plaintiff answered that she could not say exactly, except that it was so great a distance that it never occurred to her that it would catch up before she could cross. Asked by the court if she had any idea as to the number of feet, she said she had not. Counsel for defendants, continuing the cross-examination, asked her, when she looked up the street and saw that following machine, if that was just when she stepped down off the curb or just after she got down in the gutter. She answered that before she stepped off the curb she had looked to see what, if anything, was coming, and that she did this while still on the sidewalk. She looked up the street, that is to the west, and saw this following machine and then stepped down over the gutter and into the street without looking west again. Asked if she had not walked as far as the middle of the street from the curb; she answered that she did not think she had walked that far; she first went just far enough into the street so that the first would pass her and leave a space between her and it, then, that car having passed, she stepped along behind it in the street. After she had stood on the sidewalk and looked west up Washington avenue and saw this following machine at a distance, she repeated, she did not look again. Asked by the court if she had stood in the middle of the street after she got there, she answered she had stood in the street just for the first car she was waiting for to pass her. Asked if she had stood there for a sec — 697 — ond or two, slie said, “No,” tliat to the best of her recollection she could have hurried across the street in front of the first car; that car was on the other side of Pendleton. She further testified that she did not pay any attention to the following car; stepped down off of the curb as a warning to the people in the gasoline car that she was Avanting to cross and when that car went by, she attempted to go on. Asked by counsel for defendants if she had a roll of music in her hand at the time and if she had not been looking at that when she was struck, she said, “No.” Asked if she was not doing that, and because of that had failed to see the second automobile, she answered that she had not paid any attention to the fact of the second machine; it was so far that she. never considered the fact of its being able to cover the distance; “that you naturally estimate, when you go into the street, what was coming” and she saw only one machine that seemed to make any difference with her crossing. Asked if on this occasion she had crossed the street without looking up, she answered there was nothing coming from the east and there was just this one machine, the gasoline car, that seemed to be close to her; she waited for it to pass and the other one, the following one, did not seem to be close enough to be counted in. While she could not say positively that the machine she had seen at a distance was the one that struck her, she did remember seeing the machine that struck her just before it struck her. The machine was then on her and she had 'no chance to get away. Other witnesses testified that they saw Miss Oarradine, the plaintiff, attempting’ to cross the street; that she had reached about the center of it and stopped to let one automobile pass. The electric automobile was coming east and after the gasojine machine had passed, plaintiff started to cross and was struck by this electric coupe, which was coming east on Washington avenue on the south side of the street at a rapid gait. A motorcycle policeman testified that the electric automobile was driven by Mrs. Ford; that there were — 698 — three ladies, a child and a baby in it; that at the time it struck plaintiff, it was running at about twenty miles an hour; that after striking her it ran down the street; possibly a hundred and fifty feet, and then into the curb. Another witness testified to the same effect as to the speed of this oncoming electric motor car and said that he saw the accident; that the electric machine was about two lengths behind the gasoline machine; that plaintiff was at the regular crossing; that he supposed the left front spring of the electric machine struck plaintiff, as he found scraps of clothing, etc., on it; that the machine knocked plaintiff about ten feet and then ran over her and carried her'about twenty feet further. These witnesses testified that the electric automobile was south of the center line of the street about half the width of the machine, and when plaintiff attempted to pass over behind the first machine, this second machine was about two lengths behind. It made no sound and gave no warning; that it ran about two hundred feet east after striking Miss Carradine, and when it stopped at the curb it was about two hundred feet behind the gasoline car. This is practicaliy the testimony for plaintiff, and while there were a number of witnesses examined on behalf of defendants, it cannot be said that its general effect was shaken or contradicted in any material respect. Mrs. Ford, however, testifying, said she was not going-over eight miles an hour; that she saw plaintiff standing in the center of the street; that she looked up and saw the electric and walked right into it; that when she saw plaintiff standing- in the street her car'was about a hundred feet west of Pendleton and that plaintiff was about a hundred feet east of that street, crossing- diagonally. On this state of facts the question of contributory negligence was for the jury. We cannot say, as a matter of law, that plaintiff was guilty of contributory negligence. It is argued by' learned counsel for appellants, in support of his proposition that the court erred in refusing- to take the ease from the jury because of the contributory negligence of plaintiff, that it is the duty of a — 699 — pedestrian on a public highway to watch for the approach of automobiles and that failure to do so is negligence. That is the first and, apparently, controlling ground upon which he relies for a reversal of the judgment in this case; in fact, we are advised by the memorandum of the learned trial judge, which appellants’ counsel has seen fit to embody in his abstract of the record and bring before us, that in support of the motion for new trial defendants relied solely upon the contention that plaintiff's own evidence shows her to have been guilty of such contributory negligence as to preclude her as a matter of law from recovering. The trial court, in this memorandum, says that in support of this proposition learned counsel had cited numerous cases from Missouri, declaring that the duty to look is a continuing one and that the duty1 does not cease until after the range of danger has been passed, and had asked the trial court to apply these authorities to the facts in this case. The learned trial judge, however, very correctly remarked that counsel had overlooked the fact that all of the cases cited and relied upon by him are cases involving either the crossing of a railroad track or the crossing of a street car track and were so decided for the reason that a street car track or a railroad track is held to be in and of itself a signal of danger. In his brief before us, however, the learned counsel for appellants, apparently abandoning this line of Missouri eases, has cited a number of cases from other -jurisdictions in support of his proposition as to the duty of a pedestrian to watch for the approach of automobiles and that the failure to do so is negligence. Whatever may be the rule in other jurisdictions, the rule is otherwise in our State. So it was held in Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182. That was a decision of our court, the opinion written by Judge Nortoni. In Hodges v. Chambers, 171 Mo. App. 563, 154 S. W. 429, Judge Allen there speaking for our court, after holding that the great number of cases dealing with the duty of one in crossing or walking upon railroad tracks or street car tracks, while correctly applied in cases of — 700 — that kind, because such tracks are in themselves a warn-/ ing of danger, holds (l. c. 570) that such cases have no application in the case of a pedestrian travelling along the street, for the reason that the pedestrian going along' the public streets of the city or town has as much right upon a driveway as anyone else and has a right to presume that one. driving an automobile would exercise that degree of care enjoined upon him by law. This principle is so sound and so in line with modern conditions, that it ought not to be questioned anywhere. The rule contended for by learned counsel for appellants as to the superior fight of vehicles in the public highways over the right of pedestrians, undoubtedly had its origin in conditions prevailing in feudal times and in monarchal countries, when the “common people” trudged along these highways on foot and the King and his nobles and courtiers rode over them, the “common people,” being pedestrians, having no rights on them which the King and nobles were to or did respect. That is not so in our day and, especially, in our Republic. With us, all have an equal right to the use of public ways and each must so use them as to have due regard to the rights as well as the safety of others. People driving machines propelled by power, whether animal or mechanical, must have due regard to the safety of pedestrians. In brief, and as said by our court in the two cases referred to, the right of the pedestrian to proceed along the streets and highways of the city and of the country, is just as. high as that of the person in a vehicle drawn by horse power or propelled by steam, gasoline or electricity. As concerning the contributory negligence of the respondent, our Supreme Court, in the recent case of Howard v. Scarritt Estate Co., 267 Mo. 398, 184 S. W. 1144, has said: “It is not the law that the least negligence of him who is hurt will excuse an otherwise guilty tort-feasor for his negligent act. [Citing cases.] It is plain (and it has so.been ruled) that to hold otherwise would be to bold that there exists in this State the doctrine of comparative negligence, a doctrine which has been, when — 701 — sought to be invoked, always expressly repudiated. [Citing cases.] The rule as to the quantum of contributory negligence which is sufficient to prevent recovery is that it must be such as to enter into and form the direct, producing, and efficient cause of the casualty, and absent which the casualty would not have happened.” In line with what is said by our Supreme Court in the Howard case, supra, and as applicable to the facts in the case at bar, our Supreme Court, in Strauchon v. Metropolitan St. Ry. Co., 232 Mo. 587, 135 S. W. 14, has held that the conduct of the plaintiff there, as shown by the evidence, can only be characterized as poor judgment but does not degenerate into negligence. That is a case where a pedestrian attempting to cross a street railway track, looks and sees from a straight line, or an acute angle, a car approaching two hundred feet away, and supposing that at the usual speed of cars on the track at that point he will have ample time to cross, thereafter gives no further heed to the approach of the car. In such case, it was there held that the pedestrian is not chargeable with contributory negligence in assuming that he could have crossed in safety. Applying the above rule here, there is evidence tending to show that Mrs. Ford, the driver of this electric machine, was coming at an excessive speed — twenty miles an hour — along one of the most frequented thoroughfares in the city of St. Louis, in the center of the most populous residence district of the city; that she was driving her machine without a sound of warning. The evidence is that these electric machines move along almost noiselessly over a street such as this, a wooden block pavement covered with ereasote and sand, and coming along at this rate of speed, which under the circumstances and the place was reckless, it ran upon this unfortunate young woman and inflicted serious and possibly permanent injuries. So that although plaintiff may have been somewhat negligent in failing, to be more careful before attempting to cross, that fact, as held in the Howard case, supra, will not excuse defendants for the negligent act of so driving the electric machine. As — 702 — held in the Strauchon case, supra, respondent here, seeing the electric car at a distance west, nearly a block, had a right to assume that at the usual speed, that car would not reach her until she had time to cross in safety. Furthermore, by her own evidence, Mrs. Ford was not, when she saw plaintiff standing in the center of the street and about to cross, using “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” a public street. [Act of March 9,' 1911 (Laws 1911, p. 330, sec. 9).] The second point made by learned counsel for appellants under his assignment as to contributory negligence is that if a pedestrian sees an automobile approaching near him on the street which he proposes crossing, he must continue to observe its movements and that failure to do so is negligence on his part. We do not think that under the facts here present and under the. authorities we have above cited, that point is well taken. Counsel’s third point under that assignment'is, that-stepping in front of an autmobile is negligence on the part of. a pedestrian. It is true, if respondent did that, knowing of the presence of the automobile, she could not recover. But in the case at bar it distinctly appears that plaintiff here had every reason to suppose that this electric machine was not within striking distance. When she saw it, it was almost a block away and plaintiff had no reason to believe that she was in any danger from it. She was very much in the situation of the plaintiff in the Strauchon case, supra. The second assignment of error is that .the trial court erred in giving respondent’s first instruction, which advised the jury that if they believed that appellants’ automobile was not as near the right hand curb as possible, their verdict should be for respondent and against appellants, because the ordinance so providing was not pleaded specifically or in substance in the petition. As we have seen, by stipulation of counsel, the petition was — 703 — amended before the trial, so as to specifically insert in it tbe clause when referring to the provisions of the ordinance and the disregard of it, in that appellants had driven the electric machine along and over a public street without slowing down as she approached the crossing, “and without keeping as near as possible to the right-hand curb of said avenue,” so that this is distinctly pleaded. When we come to the discussion by the learned counsel for' appellants of this point, that is, to error on the part of the trial court in allowing respondent to read in evidence ordinance 1327 of the city of St. Louis, for the reason that the ordinance is not pleaded specifically or in substance, the section of the ordinance referred to (section 1327, Revised Code of 1912 of the City) was read in evidence, and the only objection made to its introduction was of this kind. “Mr. Blodgett: I object to the introduction of the ordinance under this petition.” This was overruled, defendants excepting. That objection means nothing. The final assignment is that the trial court erred in giving respondent’s first instruction, which advised the jury that if they believed that appellants’ automobile was exceeding a speed of ten miles an hour, their verdict should be for respondent and against appellants, because the ten-mile ordinance is in conflict with the statute and is therefore void. This is a challenge of the validity of ten-mile ordinance of the city as being" in conflict with the statute and as inconsistent with the Act of the General Assembly of this State relating to motor vehicles, approved March 9,1911. [Session Acts 1911, p. 322.] When these sections 1338 and 2585 were offered in evidence, counsel for appellants said: “I make the same objection to that,” evidently, referring to the one we have previously set out, which, as we have seen, was a mere general objection to the introduction of the ordinance under the petition, without assigning any specific ground of objection. The validity of the ordinance was in no manner challenged by such an objection. It is therefore apparent that that question, that is to say, as to the validity — 704 — of these ordinances of the city governing the movement of automobiles through the streets of the city, as tested by the Act of the General Assembly approved March 9, 1911, is not before us. All we have before us are the ordinances of the city, pleaded, as we think, sufficiently, and introduced without any specific objection or with any objection that we can take note of. One of those ordinances provides that th.e speed limit in the resident parts of the city, or in the parts other than the business portions of the city, shall not exceed ten miles an hour. The learned counsel for appellants has himself said in his brief in this case, that “any speed in excess of the speed limit prescribed by valid ordinance is negligence per se under the universal doctrine in this State,” citing many cases in support of this proposition. As the ordinance prescribing the speed limit was, as we hold, properly pleaded and in evidence without proper objection, and that ordinance prescribing that the speed should not exceed ten miles an hour in the district mentioned, there is no room for controversy over the fact that this was a negligent act on the part of appellants. Appreciating the learning, skill and industry of counsel in briefing and arguing this point, we are compelled to say that question is not here before us in this case and we must decline to enter into a discussion, much less into a decision, of it. Finding no reversible error to the prejudice of appellants in this case, the judgment of the circuit court is affirmed. Nortoni and Allen, JJ., concur.