Groom v. Kavanagh , 97 Mo. App. 362 ( 1902 )

GOODE, J.

— The substance of the case on which •plaintiff obtained judgment for fifteen hundred dollars for personal injuries is, that she was struck by a team of runaway horses hitched to . a sleigh on one of the public streets of St. Louis and badly hurt. She charges in her petition that defendant carelessly left his team standing on' Dickson street without being fastened, hitched, guarded or in any way attended so as to prevent it from running away, and that while plaintiff was passing west over O’Fallon street and in the act of passing from the south to the north side thereof, at or near its intersection with Twenty-first street, said horses and sleigh, on account of being carelessly left by defendant without restraint, ran over her throwing her against the street and sidewalk and permanently injuring her. It is further charged that the horses were wild and subject to take fright and run away and that their disposition in this regard was well known to the defendant.

The testimony for plaintiff tended to establish the allegations of the petition and to show that defendant, who had been sleighriding with a young lady, left the team standing unhitched in front of the gate of her residence with no one holding the reins, while he assisted his companion to alight from the sleigh; that when the horses started to runj defendant was standing between the curbstone and the gate with his back to the horses engaged in conversation with the lady; that the horses were blooded, high-strung animals and had previously run away while defendant was driving them, so that he had knowledge of their wild proclivities.

The team started to run in front of No. 2422 Dickson street and continued until they ran over the plaintiff as she was crossing Twenty-first street at its intersection with O’Fallon. Plaintiff is very dull of hearing and while the sleighbells on the harness were ringing, she might not have heard them on that account.

It seems there is a jog in Twenty-first street where it meets O’Fallon, so that the north end of Twenty-first street starts from O’Fallon somewhat west of the line from which the south end runs into O’Fallon.

Plaintiff’s testimony is not clear as to her position on Twenty-first and O’Fallon streets when she was struck by the horses, but tends to prove it was such that she was unable to see north on Twenty-first street, from which direction the team ran on her, because of said jog; hence, she did not look north on Twenty-first street, or looked but slightly, before she attempted to cross, and the team was on her before she had a chance to get out of the way.

The defendant owned the horses and excused their escape as follows: When he drove up to the curb in front of the young lady’s house on Dickson street, he got out of the sleigh-, and, still holding 'the lines, .assisted her to alight. At the time, to-wit, about seven o’clock on January 30, 1902, the streets and sidewalks of the city were covered with ice and snow, and as the young-lady was being assisted from the sleigh by the defendant his foot slipped and he fell to the ground. His fall caused him to jerk the reins of the horses, which alarmed them so that they escaped from his control and ran off.

There was evidence for the defendant tending to-prove the plaintiff had an unobstructed view along Twenty-first street to the north before she attempted to cross, and that the jog in the street in no way interfered with her view. There was also testimony that O’Fallon and Twenty-first streets were much used thoroughfares and many vehicles passed along them at the hour of day when this accident happened.

Exceptions were saved by the defendant to the court’s rulings on the instructions and the correctness of those rulings is the question for determination on this appeal.

The instructions given to the jury show the trial judge thought the rules of law applicable to the case were as follows:

First. That the defendant was not liable in every event for damage caused by his runaway team; but that his liability depended on whether or not he took ordinary care to prevent it from running away.

Second. That if he left .it unattended and unhitched on the public street, those facts were evidence of negligence and of consequent liability on his part to persons injured by the horses.

Third. That a foot-passenger when crossing a traveled thoroughfare of a city must use ordinary care to avoid injury by horses and vehicles.

Fourth. That sometimes in order to observe that kind of care, a footman must look or listen, before attempting to cross a street, but that he is not required to do so in such an absolute sense that his omission will always and necessarily defeat an action for damages caused by a collision with a horse or vehicle due to the owner’s negligence. In other words, that in some instances, and in the present one, it was for the jury to .say whether the plaintiff was negligent, and if so whether that negligence contributed to cause the accident.

Fifth. That the defendant is not*liable to the plaintiff if the casualty was a pure accident, in no way due to the defendant’s carelessness.

Sixth. That the burden of proof was on the plaintiff to show the defendant was guilty of negligence which caused her injury, and on the defendant to show she was guilty of contributory negligence.

Seventh. That ordinary care means the degree of care which would be used by a person of common prudence in similar circumstances.

Those propositions are all sound law and most of them are so trite as to need no support by argument or citations. They were appropriate, too, to the issues in this case wherein all the material facts had to be found from contradictory testimony.

The refused instructions, except the first one which was in the nature of a demurrer to plaintiff’s case, were covered by those the court gave, as will be easily seen by a comparison.

In favor of the motion that a nonsuit should have been ordered, appellant’s counsel argue that the law requires a person about to cross a city street to always look or listen for approaching horses or vehicles; but that is pushing the rule too far. Circumstances may occur which will excuse a person for omitting to look or listen for trains before going on a railroad track, though the precaution is specially necessary in such instances. Kenney v. Railway, 105 Mo. 270; Jennings v. Id., 112 Mo. 268; Baker v. Id., 122 Mo. 593. Certainly no more care need be taken in crossing a street than in crossing a railway, and the duty incumbent on a traveler in either case is to take ordinary care; though this usually requires him to look or listen before vem taring on a railway track and may require him to do so before he crosses a street. But various facts must be considered in deciding whether he was negligent if he did not look or listen; such as the quantity of travel on the street and the opportunity to see and hear approaching animals and conveyances.

The facts before us, as testified to by the plaintiff, show it would have.been an incorrect charge if the trial court had instructed the jury the plaintiff could not recover because she failed to look or listen for vehicles coming along Twenty-first street from the north before she attempted to pass over the crossing of that street and 0 ’Fallon. She could scarcely hear, so listening would have been useless; and in fact she did listen to the extent she could. .She swore that from the direction she took in crossing it was impossible to, see along Twenty-first street because a house obstructed her view. These facts, if true, proved she was not guilty of contributory negligence in omitting to look or listen. Baker v. Railway, supra; Johnson v. Id., 77 Mo. 547; Donohue v. Id., 91 Mo. 357; Petty v. Id., 88 Mo. 306. That being the law, her testimony was to be weighed by the jury against the testimony given by witnesses to the contrary. The decision in Baker v. Savage, 45 N. Y. 191, is not necessarily opposed to ours, because all the testimony in that case showed the plaintiff therein could have seen the wagon which hurt her, by a mere glance, and in time to get out of the way. What this plaintiff was bound to do was to use ordinary care in going over'the crossing, and the jury were so told. They were instructed that if they found the plaintiff stepped on to the crossing and in front of the horses without exercising ordinary care in looking and listening for the approach of horses or vehicles, and further found that if she had exercised such ordinary care she could have seen or heard the team in time to prevent a collision, the verdict should be for the defendant. That charge fully submitted the defense, unless we hold the plaintiff was bound to look and listen whether she could see or hear or not, or hold that her positive testimony that she could not see was of no weight; and of course we will do neither.

The testimony of several witnesses that the defendant left his horses unhitched and unheld while his back was turned to them, he knowing they were spirited horses and had previously run away, made a prima facie case to go to the jury. Ward v. Steffen, 88 Mo. App. (St. L.) 571; Becker v. Schutte, 85 Mo. App. (K. C.) 57.

All the issues of fact were controverted, and as the jury determined them by the aid of accurate charges, and the trial judge refused to set aside the verdict as being opposed to the weight of the evidence, the judgment is affirmed.

Bland, P. J., and Barclay, J., concur.