Green ex rel. Green v. United Railways Co. , 165 Mo. App. 14 ( 1912 )

CAULFIELD, J.

(after stating the facts). — I. Respondents’ counsel concede, and we are constrained by the decisions of our Supreme Court to hold, that the judgment must be reversed because the instructions for plaintiffs required the jury to find for the plaintiffs if they found that defendant’s negligent acts or omissions complained of “directly contributed to cause” the injuries of which plaintiff’s father died, instead of that such acts and omissions caused the injuries. "Where the pleadings and the evidence were substantially in the same state as in the case at bar like instructions have been emphatically condemned and held to be reversible error. [Hof v. Transit Co., 213 Mo. 445, 111 S. W. 1166; Krehmeyer v. Transit Co., 220 Mo. 639, 120 S. W. 78; Schmidt v. Transit Co., 140 Mo. App. 182, 120 S. W. 96; Wilson v. Transit Co., 142 Mo. App. 676, 121 S. W. 1083.] So far as their effect on this appeal is concerned, it is unnecessary to further discuss the instructions, but to avoid further error upon a retrial, the first and second instructions should be reframed, not only to avoid the error for which the judgment is reversed, but also so as to limit the jury, in their consideration of defendant’s negligence, to a consideration of the specific acts and omissions relied upon as constituting defendant’s negligence. In their present form they tend .to broaden the issues in that respect. It would also obviate the necessity of meeting another point if the plain- ' tiffs prove that the collision occurred within the district defined by the speed ordinance.

II. The real controversy between the parties on this appeal is as to whether the cause should be remanded, defendant’s contention being that the conduct of plaintiff’s father, as shown without conflict by their own evidence, in approaching the crossing at such a rate of speed that it was impossible to stop in time to avoid the collision after discovering the close proximity of the car, constituted contributory negligence per se as matter of law. Such conduct on the part of an ordinary traveler in a vehicle under ordinary circumstances has been held to be negligence per se as matter of law (See Wheeler v. Wall, 157 Mo. App. 38, 137 S. W. 631); but it does not follow that it is to be denounced as negligence under any and all circumstances. ‘ ‘ The true legal rule is that one approching a railway crossing must exercise reasonable and ordinary prudence to avoid the danger necessarily to be apprehended there” (Kenney v. The Hannibal & St. J. R. Co., 105 Mo. 270, 288, 15 S. W. 983, 16 S. W. 837); and it is elementary that the same act may be careful or negligent according to the variant facts and circumstances. This is true of the act of one approaching a railroad crossing as well as of the act of one in any other situation. As was said by our Supreme Court in Jennings v. St. Louis, I. Mt. & S. R. Co., 112 Mo. 268, 20 S. W. 490, concerning the rule requiring the traveler to look and listen, “such a general rule of conduct must have grown out of experience and observations that were common and ordinary; hence the rule, like most others, is not of universal application, but has exceptions under exceptional circumstances.” The case of Kenney v. Railroad Co., supra, is to the same effect. Let us consider, then, whether the facts and circumstances surrounding Green, the plaintiffs’ father, at the time of and just before the collision, were so different from those usually surrounding the ordinary traveler that what would have been negligence in the latter per se might by reasonable minds be deemed consistent with the care to be expected of the ordinarily prudent man under such circumstances here disclosed. Whether he be an ordinary traveler or a fireman the ordinarily prudent man acts in the light of his experience of what is customary and usual and whether he has acted carefully or negligently must be adjudged in that light. Great speed on the part of the ordinary traveler is usually needless and of no public interest. Not being usual, he must know that it is not to be expected of him by others lawfully on the streets. It is of very slight inconvenience to him and none to the public if he be compelled to approach a street railroad track at slackened speed, ready to stop on the slightest warning. No alarm precedes his coming. No necessity exists for giving way to him. It is not customary to do so. He cannot reasonably expect it: On the contrary, it is his duty to give way to street cars which have a public duty to perform with reasonable dispatch. [Hickman v. The Union Depot Railway Co., 47 Mo. App. 65.] Therefore it is proper to exact of him that he approach a street railroad track cautiously, with his vehicle under control, looking and listening, ready to stop and give way to the street car, and any contrary course may well be deemed negligence per se as matter of law. With plaintiffs’ father, the driver of this hose wagon, the circumstances were entirely different. He must of necessity have responded to the alarm of fire with the greatest practicable speed, for the safety of life and property might, and often does, depend upon his apparatus and the firemen on it arriving promptly at the fire. He drove down Twenty-second street at the speed usual in going to a fire. This cannot be considered negligence per se. It was not reasonably to be expected that he should proceed with the deliberation and caution of an ordinary traveler. He was bound only to drive with that care which a prudent person would exercise under similar circumstances. By ordinance and public necessity his hose wagon had the right of way, and street cars had no right to intercept or obstruct it. The vehicle on its way down Twenty-second street was preceded by a continuous clamor of the gong, a sound so loud and penetrating that it could be heard far ahead and for blocks around. He slowed down at the alley just before reaching Olive street, evidently ’seeing the man waving. A coal wagon went by as if it was the thing waved at. The way seemed clear. The gong was sounding and those on Olive street could well hear it in ample time to hold back if they would. It was their duty to hold back; it was customary for them to hold back. He had the right of way by ordinance and there was. nothing to indicate that any one was about to deny it to him. He was justified in assuming that those in charge of vehicles and cars on Olive street knew of his coming; he had a right to assume that they would heed the warning and give him the right of way. It was his duty to proceed in haste; he decided to proceed; he did proceed, with moderate haste, and if defendant’s motorman had heeded the warning gong, and, heeding it, had observed the ordinance and held back from the hose wagon’s way, he would have made the crossing in safety. We are not prepared to hold that his decision to proceed was unreasonable under the circumstances. Although it would have been negligence in law for a traveler under ordinary conditions to have approached the crossing at the speed with which Green drove, still, the circumstances surrounding Green so differ that reasonable minds might consider the same conduct by him within the bounds of due care; hence we are of the opinion that the question was one properly for the jury. There is ample authority for this holding. [See Michael v. Kansas City Western Ry. Co., 163 Mo. App. 53, 143 S. W. 67; Hanlon v. Milwaukee R. R. & L. Co., 118 Wis. 210; Warren v. Mendenhall, 77 Minn. 145; Leary v. Metropolitan St. Ry. Co., 82 N. Y. Supp. 1016; City of New York v. Metropolitan St. Ry. Co., 85 N. Y. Supp. 693, affirmed in 182 N. Y. 536; Farley v. The Mayor, etc., 152 N. Y. 222; Chicago City R. R. Co. v. McDonough, 125 Ill. App. 223, affirmed 221 Ill. 69; Flynn v. Louisville Ry. Co., 110 Ky. 662, 62 S. W. 490.] The defendant cites us to Gruiney v. Southern E. Ry. Co., 167 Mo. 595, 67 S. W. 296, as sanctioning a contrary view, but we are not persuaded to so construe it. In that case our Supreme Court did nothing more in this respect than construe an instruction and hold that it did not declare as a matter of law that the failure of the driver of a fire department fuel wagon to look and listen is under all circumstances negligence, but required of him nothing more than the exercise of ordinary care.

For the reason stated in the first paragraph of this opinion the judgment in the case at bar is reversed and the causé is remanded.

Reynolds, P. J., and Nortoni, J., concur.