Hanheide v. St. Louis Transit Co. , 104 Mo. App. 323 ( 1904 )

REYBURN, J.

(after stating the facts as above). —1. The first instruction above is assailed as wholly ignoring the issue of contributory negligence, and the Sullivan case (88 Mo. 169), is invoked in support of the contention. The true rule is, the instructions are to be taken as a whole, and if the defense of contributory negligence had been presented to the jury, though disregarded in the first, but properly presented in a subsequent and separate instruction this would have been sufficient, and such is the doctrine of Owens v. Railway, 95 Mo. 169, wherein, the contrary ruling of the above authority relied on by appellant, is expressly repudiated. But this method was not pursued, defendant had interposed the defense of contributory negligence, and plaintiff’s denial in his reply presented such issue, and defendant had the right to have such question submitted to the jury, and in the form in which the jury were instructed the stricture of this instruction was well founded, and it is fatally defective. Much of the reasoning in the case of Linder against this defendant (No. 9051, December 15, 1903) lately before this court, and cited by ap•pellant is applicable to this case. The rights of employment of public streets as highways by the public whether on foot or in vehicles, and their use for the convenience of transportation of the public by cars propelled by electric power are equal and concurrent, and to be taken advantage of and exercised to avoid injury and with reasonable regard to the common safety. It devolved alike on the plaintiff and motorman of defendant to exercise due care to avoid the impending collison, and it was for the jury and not for the court under the facts and circumstances herein presented, to determine which party was at fault. The Supreme Court in a recent case, not adverted to in this argument, has again announced the legal principles governing where a collision has ensued between a private vehicle and an electric car, and while in many particulars the facts therein reviewed do not resemble those presented by this record, yet light is thrown on this case therefrom, and especially in two directions. It is therein held that at a crossing or intersection of public streets, no particular rate of speed can be deemed lawful regardless of the conditions and circumstances that confront the motorman at the time, and where a motorman discovers that a vehicle is negligently approaching a crossing, it becomes his duty to regulate the speed of his car, if in his power, so as to avoid the infliction of any injury, and the familiar doctrine is therein reiterated that the mere negligence of a plaintiff in approaching and crossing a track would not justify the infliction of an injury if it could be avoided by the adoption and exercise of reasonable care and caution. Holden v. Railroad, 76 S. W. 973. The same doctrine has been announced in this court in these words: “The settled rule in this State is that, though the plaintiff negligently placed himself in a perilous position. by driving on or near the track, the motorman operating the car owed the plaintiff the duty of trying to avoid injuring him, and plaintiff’s previous negligence did not bar a recovery, if the injury resulted from the negligence of the motorman in not stopping or checking the car, ’ ’ citing numerous decisions. Septowsky v. Transit Co., 76 S. W. 693.

2. The instruction, already quoted, given after the argument had proceeded, in no wise modified or injected into the first instruction for plaintiff a proper consideration of the contributory negligence, if any there was, on the part of plaintiff. While purporting to give a legal definition of contributory negligence, this instruction demands that such negligence shall be found the sole and direct cause of the accident, an interpretation at war with the term ‘ ‘ contributory ’ ’ itself. ' This court has lately held in such cases, that if the accident be caused by the joint and concurring negligence of both plaintiff and defendant’s agents, and the negligence of neither without the concurring negligence of the other would have caused the injury, the plaintiff is not entitled to recover. Hornstein v. Railroad, 97 Mo. App. 271.

3. The appellant has made conspicuous the discussion participated in by the trial judge and opposing counsel prior to argument to the jury, as a result of which appellant’s counsel declined to present any argument on its behalf; it will suffice to dispose of this branch of the case by the expression by this court of the confident belief that such occurrence will not recur at any future trial.

Judgment reversed and cause remanded.

Bland, P. J., and Goode, J., concur.