Foy v. United Railways Co. , 205 Mo. App. 521 ( 1920 )

A suit for damages to the person and property of plaintiff alleged to have been caused by the negligence of the defendant in operating one of its street cars. The plaintiff's automobile truck was damaged and she received personal injuries as a result of a collision of the automobile with the street car at the corner of Olive street and Theresa avenue. The truck at the time was being driven by plaintiff's son, Mathew Foy, and it is conceded that he was acting as plaintiff's agent, and that his acts are imputable to her.

The negligence specified is: (1) A violation of the Vigilant Watch Ordinance of the city of St. Louis, which requires the motorman to keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible; and (2) a violation of the so-called Speed Ordinance of said city, which prohibits a street car being propelled at a greater speed than ten miles per hour in that portion of the city where the collision occurred.

The answer is a general denial and a plea of contributory negligence on the part of both the plaintiff and her agent and chauffeur in failing to exercise the high degree of care imposed upon them by the law in operating the automobile on the streets of the city, in that they caused and permitted the said automobile in which they were both riding at the time to suddenly and unexpectedly approach so near a street car track, on which a street car was at the time moving, as to cause said automobile to come in contact with a moving street car, and that they negligently drove in such close proximity to said track, without looking or listening for the approach of said car, when and where, if they, or either of them, had looked or listened, they or either of them could have seen and heard the approaching car in time to have kept far enough from said track to have avoided the collision.

The main defense as developed by the evidence was the alleged contributory negligence on the part of plaintiff's agent and chauffeur in driving the automobile upon the street car tracks without performing the duty imposed on him to look and listen for the approaching car.

Following the verdict of a jury, there was a judgment for plaintiff for $1250, from which defendant has appealed.

I. It is first contended by defendant that its demurrer to the evidence should have been sustained, for the reason that the evidence shows that the driver of the automobile was guilty of contributory negligence as a matter of law. Defendant did not stand on its demurrer filed at the close of plaintiff's case, but introduced evidence on its behalf, and in passing upon the propriety of the court's action we must consider all of plaintiff's evidence to be true, view it in the light most favorable to her, drawing from it all inferences that may reasonably be drawn in her favor, and in the event defendant's evidence in anywise aids plaintiff's case, take such evidence into consideration, and disregard all contradicted evidence of defendant unfavorable to plaintiff. Otherwise we invade the province of the jury.

Having these elementary rules in mind, we approach the question whether the evidence discloses such conduct on the part of the driver of the automobile (and for whose acts plaintiff is concededly responsible) as to convict him of contributory negligence beyond an inference to the contrary.

The collision occurred at about eleven O'clock a.m. on October 22, 1916, a bright, clear day, at Theresa avenue and Olive street. On Olive street, which runs straight east and west, defendant operates a line of cars. Theresa avenue runs north and south, and Grand avenue is the first street to the west some seven or eight hundred feet away. There is a considerable down grade from Grand avenue east to Theresa avenue and beyond. At the time in question plaintiff was sitting beside and to the left of Mathew Foy, her son and chauffeur, on the east of the automobile truck owned by her, and which was proceeding northwardly over Theresa avenue. The street car that collided with the truck approached Theresa avenue from the west coming down the grade from Grand avenue. Buildings are constructed on the building line on the four corners of the two streets, which prevented one approaching the intersection from seeing up and down the street until they had reached a point beyond the building line.

Mathew Foy (the driver), was about twenty-five years old at the time, and was an experienced operator of automobiles. He testified that when he approached Olive street he stopped his truck and looked west and could see about 300 feet and could look east and see about 250 feet, and didn't see a car coming either way; that he then blew the horn and started to cross the tracks; that when the automobile arrived at about the first rail of the eastbound track he heard the noise of the street car coming from the west and looked up and saw the car about 40 feet west of a dance hall, known as Dreamland, which was about 168 feet west of Theresa avenue, coming down grade at a speed of between 30 and 35 miles per hour; that he kept his machine running and started over the track, and then looked again, when the car was almost on him, and that he put on all the power he could, but that he failed to get across the track, and the street car hit the rear wheel of the automobile and knocked the machine to the north side of Olive street, about 50 feet east of the northeast corner, and that the street car ran about 100 feet after the collision. The witness further testified that at the time he stopped his automobile he was about two feet north of the south building line, and while it is not clear from his testimony why he should not have seen further west on Olive street than 300 feet, he testifies that he could see only this distance and did not see the car.

The situation is to some extent cleared up by the testimony of another witness, who was at the time standing at the southwest corner of Theresa avenue and Olive street, and who testified that he noticed the truck come to a stop at the corner, and that Mrs. Foy and the driver looked both ways while the machine was standing still, and that the witness had seen no street car coming until the truck got on the track, when he then saw the street car 120 feet away coming down the grade at a speed of 30 miles an hour; that in looking west on Olive street from the point where he was standing one's view may be obstructed by a post on the west side of Theresa avenue, and by what the witness terms a "cut-out" at this point, and that a clear view west from Olive street cannot be obtained until one arrives at or beyond the curb line.

While Mathew Foy was an experienced handler of automobiles, he was not an experienced witness, and under the adroit cross-examination of defendant's counsel testified that after making the first stop of his automobile just north of the building line, he proceeded northwardly and stopped again about 10 feet from the car track, and then saw the car approaching Theresa avenue, and then started again across the track. Immediately upon being cross-examined, he was re-examined again by plaintiff's counsel, and testified that when he first saw the car coming the front wheels of his automobile were about on the south rail of the eastbound track. Afterwards the witness was re-called to the stand, and testified that he was confused and mistaken upon his cross-examination in regard to his position when he first saw the car. He then again testified that the front wheels of the truck were about on the tracks when he first noticed the car.

The plaintiff, Mrs. Foy, testified that when they approached the intersection of Olive street her son stopped the automobile, and that they both looked up and down the street and did not see or hear a car; that they then started across the track, and when the front wheels of the automobile were on the south rail of the eastbound track she then saw the street car for the first time coming down the grade at a "terrible rate."

While the statements made by Mathew Foy are contradictory, in that he stated on cross-examination that he first saw the approaching car when he was 10 feet from the track and could have stopped his automobile before going on the track (he testified he was going five miles an hour and could stop in one foot), he afterwards stated he was confused and mistaken about the matter, and that when he first observed the car the front wheels of his machine were on the rails of the eastbound track. Under such circumstances his testimony cannot be said to be of no probative force, and the question of his credibility is for the jury. The rule which governs is stated by the Supreme Court in Steele v. Railroad, 265 Mo. l.c. 110, 175 S.W. 177, thus: "We concede that ordinarily a party is not absolutely concluded by his testimony in a case where subsequently upon some excuse of mistake, oversight, misunderstanding, or lack of definite recollection he denies the statements forming the admissions. But so long as the admissions made by the party-witness stand they are conclusive and the adversary side may absolutely rely upon them. This primafacie conclusiveness is destroyed when the litigant corrects his mistake upon some honest and reasonable explanation (Huff v. R.R., 213 Mo. 495, 111 S.W. 1145; Down v. Racine-Sattley Co., 175 Mo. App. l.c. 387, 162 S.W. 331), and makes his statements to agree with the truth of the matter (2 Chamberlayne's Modern Law of Evidence, 1286)."

Of course, if Foy observed the car coming at what he terms a terrific speed when he was 10 feet back from the track in a position of safety, and could stop the automobile before getting on the track and did not do so, but proceeded into the danger zone, he should be held to take the consequences, and would be guilty of negligence as a matter of law.

Considering his testimony as a whole and viewing it in the light most favorable to plaintiff, we rule it a jury question as to whether he was guilty of contributory negligence. As to the plaintiff, she testified positively that she did not see the car until the front wheels of the automobile were on the south rail of the eastbound track.

II. Defendant's learned counsel strenuously insists that the duty to look and listen is a continuing one, and that it was not sufficient for plaintiff and her driver to stop 15 feet back from the track and look and listen, but that the law required them to continue to look and listen thereafter and until they were actually upon the track, and if they did not do so their own negligence precludes a recovery.

The evidence tends to prove that the street car was coming down the grade toward Theresa avenue at a speed of from 30 to 35 miles per hour in violation of the Speed Ordinance (section 381 of the Revised Code of St. Louis); that the street car after the collision, ran about 100 feet before it could be stopped; that no bell or gong was sounded; that plaintiff and her driver approached the intersection of Olive street on Theresa avenue, and when they arrived at a point about two feet north of the building line and about fifteen feet back from the track, the automobile was stopped still and they both looked east and west and listened for a car, and did not see or hear one; that from the point where the machine was stopped the driver could see west up Olive street 300 feet, and could have seen the car had it been there; but not seeing a car within 300 feet of the crossing he started up his truck and proceeded toward the track; that he was during at least a part of this time attending to the starting of his automobile by a shifting of the gears and turning on of the gas; that had the street car been running within the ordinance speed he would have had ample time to have crossed without being struck; that neither the driver nor plaintiff saw the car until the front wheels of the truck were almost on the track, and that the driver then put on the power and did all he could to get across without being hit, and almost succeeded as the car struck the hind wheel of the automobile.

We think under the foregoing evidence reasonable men may well differ as to whether the driver performed his full duty, and that the question of his contributory negligence was for the jury. If the law is to say to the driver of an automobile that in approaching a street car crossing he must continually look to the right and left for the approach of a street car until he arrives within the danger zone, how is he to reasonably perform his duty to look ahead and in front of him for pedestrians or vehicles on the street? And how could he be expected to look both east and west at the same time?

The rule here made is under the authority of the opinion of our Supreme Court in the recent case of Monroe v. C. A. Railroad Co., 219 S.W. 68 (not yet officially reported), and the cases therein cited. In that case the facts came nearer convicting plaintiff of contributory negligence than those in the instant case, in that here the plaintiff stopped his machine and looked and listened at a point where he could see 300 feet up the track. For other cases see Moon v. St. Louis Transit Co., 237 Mo. 425, 141 S.W. 870; Strauchon v. R.R., 232 Mo. 587, 135 S.W. 14; Lueders v. Railroad, 253 Mo. l.c. 110, 161 S.W. 1159; State ex rel. Peters v. Reynolds, 214 S.W. 121; Moloney v. United Railways Company, 183 Mo. App. l.c. 297, 167 S.W. 471; Draper v. Kansas City Railways Company, 199 Mo. App. 485, 203 S.W. 646.

III. Defendant complains of the main instruction given the jury on behalf of plaintiff and which covered the whole case, authorizing a verdict for plaintiff upon a finding of the facts hypothesized in the instruction. One of the objections lodged is that the instruction imposes the duty on the plaintiff to exercise ordinary care, when the statute then in force (Laws of 1911, page 330) required her to exercise the highest degree of care.

After a re-argument and re-submission of the cause, we conclude that this objection is well taken. One of the issues as presented by the pleadings was whether the plaintiff, Mrs. Foy, sitting beside her son, the driver of the truck, and who was the owner thereof and controlled the actions of the driver, was guilty of an act of omission or commission which would have caused the collision and her injuries. Her statement was to the effect that she looked for a car when the truck stopped at a point beyond the building line and which was at least fifteen feet from the track, and did not look again until the truck was on the track and in a position of danger. From this the jury could have concluded that the plaintiff was guilty of contributory negligence. Such being the situation it was, of course, necessary that the jury be properly instructed as to the degree of care imposed upon the plaintiff in the case. The present instruction cast upon her the duty of exercising ordinary care, and upon the driver the duty of exercising the highest degree of care or such care that a very careful person would use under like or similar circumstances.

The statute providing the duty of those operating and owning automobiles, which was in force at the time of the accident (Laws of 1911, page 330, paragraph 9, section 12) provides:

"Any persons owning, operating or controlling an automobile running on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall 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 roads, streets, avenues, alleys, highways or places much used for travel."

The language of the act is very broad, and imposes an obligation not only on the operator of the automobile, but also upon the person owning or controlling it, to exercise such care as a very careful person would exercise under like or similar circumstances. In the present case, Mathew Foy, son and agent of plaintiff, was the operator of the truck, and the plaintiff was the owner thereof, and at the time was sitting beside the operator and had control over her agent and son in the operation of the machine.

This statute was construed by our Supreme Court in the late case of Threadgill v. United Railways Company, 214 S.W. 161-164, where as here the plaintiff sued for injuries received in a collision with a street car driven at the time by her son and agent. In this Threadgill case it is held that this statute imposes upon the part of the driver of an automobile in operating the same, the duty of exercising the highest degree of care for his own safety, and approved instructions which placed that duty upon the driver. While it is true the instructions in this Threadgill case only imposed the obligation of ordinary care on the part of the owner who was being driven by her chauffeur at the time and placed the obligation of high care upon the driver, and while it appears that the question of the owner's obligation under the circumstances as distinguished from that of the driver was not directly involved in the case by reason of the fact that defendant had judgment below and plaintiff appealed, we conclude from what was said by the Supreme Court in the case that the statute imposes the obligation of high care not only on the driver, but also on the owner, who was in the car, at the time and controlled the actions of the driver. For instance, on page 165 of the opinion Judge GRAVES says: "The street railway company was entitled under this law to have the plaintiff and her driver use the highest degree of care, to the end that its property and its servants might not be injured by a failure to use such degree of care. . . . This but demonstrates the fact that as to the street car and its occupants the plaintiff and her driver, in approaching them, owed them the duty of exercising the highest degree of care, and the failure to exercise such degree of care would be negligence." On the same page it is further said: "If, on the other hand, the violation of the statute occasions injury to the person violating it, such person cannot recover for injury to himself, which injury was contributed to by his own wrongful violation of law. His failure to use the highest degree of care is contributory negligence."

Plaintiff says that defendant by its instructions requested and given concurred in her theory of her duty under the law, namely, ordinary care, and that whatever error was involved in the plaintiff's instruction was invited or common error. After a careful examination, we do not so regard defendant's instructions. They are as follows:

V. The court instructs you that if you find and believe from the evidence that the driver in charge of the truck in question, when in a position of safety and at a time when he could have stopped said automobile, by the exercise of ordinary care, looked and saw the car in question, and knew and appreciated the speed at which it was coming, and knew and appreciated the danger of attempting to cross in front of it, and thereafter did attempt to cross in front of it, then plaintiff cannot recover, and your verdict must be for defendant.

VI. The court instructs you that it was the duty of the driver in charge of the automobile truck to use such care as a very careful and prudent man would use under like or similar circumstances to avoid a collision with the street car in question, and in this connection it was his duty to look and listen for the street car, and if you find and believe from the evidence that plaintiff negligently failed to look and listen for the car in question, and that said failure to look and listen contributed to cause her injuries, then your verdict must be for defendant.

VII. The court instructs you that if you find and believe from the evidence that the driver of the auto truck attempted to drive his car at a speed from fifteen to twenty miles an hour across Olive street and immediately in front of the street car in question and so close thereto as to render a collison with said street car unavoidable, by the exercise of ordinary care, then your verdict must be for the defendant, even though you may find from the evidence that the motorman failed to ring his gong and that the street car was traveling at a rate of speed greater than ten miles per hour.

Taking them in order, instruction V does not concern the duty of plaintiff, but places a duty of exercising ordinary care upon the driver to stop his truck when in a place of safety and after he looked and saw the car and knew the danger in attempting to cross in front of it. It does not cover the duty of the driver to look and listen when approaching the track and, as stated, does not attempt to cover the duty and obligation of plaintiff.

Instruction VI clearly imposes the duty on the driver of exercising the highest degree of care to avoid a collision with the car and to look and listen, and then concludes by telling the jury that "if they found from the evidence that plaintiff negligently failed to look and listen for the car in question, and that said failure to look and listen contributed to cause her injuries, then the verdict must be for defendant." No reference is made to the duty of plaintiff whether it be ordinary or high care in the instruction, unless it could be said that the word "negligently" therein used means a breach of ordinary care. This cannot be done, because there is no instruction in the case defining negligence or negligently. Negligence is a relative term, and may be a failure to use ordinary care or high care, depending on the duty imposed by the law.

Instruction VII does not aid the plaintiff, because the use of the words "by the exercise of ordinary care" used therein refer to the duty of the motorman, and the instruction does not anywhere cover the obligation of plaintiff herself.

It is unnecessary to prolong the opinion by a discussion of other alleged errors, as they are unlikely to occur upon another trial.

For the error noted, the judgment should be reversed and the cause remanded.