253(8)-INSTRUCTIONS-EXCLUD ING ISSUES-NEGLIGENCE. kling truck due to collision with defendant's In action for damages to plaintiff's sprinstreet car at a street intersection, instructions withdrawing from jury vigilant watch ordinance and failure of motorman to stop or attempt to could have stopped with safety, both pleaded as stop after knowledge of danger and when he grounds of negligence, held properly refused. one of the chains which supported the con- 4. TRIAL All other assignments of error made by counsel for appellant have been disposed of by what we have said on similar points in the case of Most v. Goebel Construction Co., supra. Finding no prejudicial error in the record, and the judgment being for the right party, it is accordingly affirmed. REYNOLDS, P. J., and ALLEN, J., concur. AQUA CONTRACTING CO. v. UNITED (St. Louis Court of Appeals. Missouri. 1. STREET RAILROADS 110(2) - COLLISION In an action for damages to plaintiff's automobile sprinkling truck due to collision with defendant's street car at a street intersection, plaintiff's petition setting up as grounds of negligence failure to ring the gong, the operation of the street car at a negligent speed, and the act of the motorman in negligently failing to keep a vigilant watch ahead for vehicles, and in negligently failing to stop, or attempt to stop, in the shortest time and space possible under the circumstances with the means at his command consistent with the safety of the persons on the car when he knew of the danger to the truck, in violation of the vigilant watch ordinance of the city properly raised question of the humanitarian rule. Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge. "Not to be officially published." Action by the Aqua Contracting Company against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed. both of St. Louis, for appellant. BECKER, J. This is a suit instituted by plaintiff for damages to its automobile sprinkling truck alleged to have resulted from defendant's negligence in causing a collision between said truck and a street car owned and operated by the defendant. Plaintiff obtained judgment against the defendant for $600, and defendant brings this appeal. The assignments of negligence set up in plaintiff's petition are as follows: First, failure to ring the gong. Second, the operation of the street car at "a negligent and high rate of speed" in excess of 15 miles per hour-the maximum rate prescribed by an ordinance of the city of St. Louis. Third, the act of the motorman in "negligently failing, for some time next prior to the time said truck was struck as aforesaid, to keep a vigilant watch ahead for vehicles on or moving towards said truck on which said car was running, and in, as aforesaid, negligently failing to stop, or attempt to stop, said car in the shortest time and space possible under the circumstances with the means at his command consistent with the safety of the persons on said car when he knew of the danger to said truck of being so struck as aforesaid by said car in time, by the exercise of ordinary care, to have, with the means at his command and consistent with the safety of the persons on said car, stopped said car before it struck said truck as aforesaid, or checked the speed of said car sufficiently to have prevented it from striking said truck," in violation of the vigilant watch ordinance of the city of St. Louis. 3. STREET RAILROADS 118(12)-COLLISION The collision occurred at the intersection CONTRIBUTORY NEGLIGENCE INSTRUC 2. STREET RAILROADS 118(15)-COLLISION -HUMANITARIAN RULE-INSTRUCTIONS. There being nothing to show that plaintiff's chauffeur drove onto defendant's street car tracks purposely and wantonly exposed himself or the truck to danger, and obliviousness to peril be ing in no sense made an issue, it was unnecessary that plaintiff's instruction stating humanitarian rule should require a finding that plaintiff's chauffeur was "oblivious" to his peril, to authorize a verdict for plaintiff. TIONS. Where plaintiff's chauffeur could have seen defendant's street car when it was about 600 feet away, an instruction that if the chauffeur saw the car before driving the truck on defendant's track at a time when he could have stopped before going upon the track, the verdict must be for defendant, was erroneous as permitting verdict for defendant even though the chauffeur saw the car at such distance as to permit his crossing in safety if the car had been running slowly. of Marcus avenue with Bell avenue, in the city of St. Louis. Marcus avenue runs north and south and begins at Bell avenue, which runs east and west. On Bell avenue there are double tracks along which the defendant operates its electric street cars. The testimony of plaintiff's chauffeur and of several eyewitnesses who testified on behalf of the plaintiff tended to prove that on May 16, 1913, plaintiff's chauffeur was oper For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the car was running 12 to 14 miles per hour, and one of them testified when he saw the truck it was 8 feet from the track and the car was 30 feet away; that the truck was going 12 to 2 miles per hour. He admitted on cross-examination that in view of the fact that the mail car struck the rear wheel of the truck his estimate of the distances or the speed could not have been correct.. [1] The first assignment of error is that the court erred in giving instruction numbered 1 for the plaintiff because it is not within the purview of the pleadings, since said instruction is grounded on the humanitarian rule, and according to appellant's contention there is no such allegation in the petition, in that it does not allege in said petition that the motorman saw or could have seen that the chauffeur was oblivious to his peril. We hold the facts alleged in the petition sufficient to state a cause of action, and that it properly raised the question of the humanitarian rule. ating an automobile sprinkling truck, about [ car at the time of the collision testified that 22 feet in length, which when the tank was filled with water weighed 10 to 11 tons; that on the day in question, after having filled the tank with water, the said chauffeur started east on Bell avenue and turned north to go across the tracks of the defendant company at Marcus avenue, where there is a slight grade up to and over the tracks. When the chauffeur got even with the building line so that he could see up the tracks, the front wheels of the truck were within 4 to 6 feet of the nearest rail of the defendant company. The chauffeur looked to the west, in which direction he could see a little beyond Walton avenue, which is one block west, at which point there was a curve in the track. The distance from the point of the collision to the curve was 583 feet. The chauffeur did not see any car in sight. He then looked to the east and seeing no car in sight started his truck across the tracks. When the truck had gotten between the north and south rail of the east-bound tracks and the truck was moving at the rate of 2 miles per hour, the chauffeur again looked to the west and saw a car about two-thirds of the way down the block and approaching at a speed of 35 miles per hour. The chauffeur then put his foot on the accelerator and tried to speed up the truck, but owing to the great weight of the same was not able to increase its speed. The chauffeur again looked up and saw the car about one-half block away; "he was coming so fast I held up my hand and I hollered at him that I could not go any faster." The car came on just the same and struck the rear part of the back wheel of the truck, knocking the rear end of the truck so that it was standing southeast and northwest; the car after hitting the truck went some 10 feet before stopping. The motorman did not slow up before the collision nor was any gong sounded. The car which ran into the truck was a mail car, and did not carry passengers. There was also testimony that the car, traveling at the rate of 35 miles per hour, could have been stopped within 150 to 155 feet. The motorman of the mail car which collided with the truck was a witness for the defendant, and testified that he had made a stop 2 blocks west of the point of the collision and had slowed down 1 block away at Walton avenue, where there is a sharp curve, and that he increased the speed of the car until he got very near Marcus avenue "and about along side of the grocery store all at once the automobile came out in front of me and I done all in my power to stop it but I couldn't stop it; I hit his hind hub." He testified the car was going between 10 and 12 miles an hour at the highest, and [2] Objection is also made to the instruction that it omits an essential element to correctly state the humanitarian rule, in that it authorizes a verdict for plaintiff without requiring a prior finding that plaintiff's servant was oblivious to his peril, and thus erroneously permits a recovery by plaintiff, though plaintiff's servant deliberately drove onto the track knowing he could not do so in safety. This point is without merit. There is nothing in the record tending to show that the chauffeur drove onto the tracks purposely, and wantonly exposed himself or the truck to danger, and as "obliviousness to peril" was in no sense made an issue in the case, we hold it was not necessary for plaintiff's instruction to require that, the motorman saw, or by the exercise of ordinary care should have seen, that the chauffeur was oblivious to his peril. A petition such as we have in the instant case and an instruction following this form of the petition are approved in the case of Taylor v. Met. St. Ry. Co., 256 Mo. 191, 165 S. W. 327, and the principle here contended for was decided to be erroneous in the case of Bybee V. Dunham, 198 S. W. 190, in which the case of Knapp v. Dunham, 195 S. W. 1062, relied upon by appellant, is distinguished. court refused to give the jury the following [3] It is next assigned as error that the instruction requested by the defendant: "The court instructs the jury that if you find and believe from the evidence that plaintiff's driver saw the east-bound car before driving the automobile truck upon the track, at a time when fore going upon the track, and that he knowinghe could have stopped his automobile truck bely attempted to cross the track in front of said car, then plaintiff is not entitled to recover, and your verdict must be for the defendant." It that the car was between 20 and 25 feet from This instruction was properly refused. the truck when the truck first went onto the would have permitted a finding for the decar tracks. fendant even though the chauffeur had seen Boyle & Priest, T. E. Francis, and Chauncey H. Clarke, all of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent. and when he would have had sufficient time [motion for new trial, defendant appeals. to cross in safety if the car had been run- Affirmed. ning at a low rate of speed. This instruction, to have brought it within the rule as laid down by the authorities most favorable to appellant, should have contained the additional requirement that the chauffeur knew at the time he started to cross the tracks that he did not have time to cross in safety. We have found no case which is authority for the giving of an instruction as requested by defendant. Under the facts in this case the court, at the request of the defendant, gave a correct instruction which covered this point, namely: "The court instructs the jury that if you find and believe from the evidence that the plaintiff's driver came around from Bell avenue into Marcus avenue directly in front of the approaching car, and so close thereto that a collision was inevitable and unavoidable, then plaintiff cannot recover, and your verdict must be for the defendant." [4] Complaint is made of the refusal of the court to give instructions D and E requested by the defendant. Instruction D attempted to withdraw the vigilant watch ordinance from the jury, whereas instruction E attempted to withdraw the assignment of negligence that the motorman negligently failed to stop or attempt to stop the car after he knew the sprinkling wagon was in a position of danger, and when he could have stopped with safety to those in the car, and by the exercise of ordinary care. We hold these assignments of error, in view of what we have said under paragraph one of this opinion, to be without merit. We have carefully gone over the record and find it without error. The judgment is for the right party, and is accordingly af firmed. REYNOLDS, P. J. Plaintiff brought its action against the defendant to recover damages for injury done to one of its motor trucks, the injury alleged to have been causages for injury done to one of its motor ed by defendant's negligence. Damages in the sum of $500 are prayed. The amended answer upon which the case was tried, after denying the several allegations of the petition and setting up the carelessness and negligence of the plaintiff's servant, who was driving the automobile truck, by way of further answer sets up: "That this suit is not brought in the name of the real party in interest, in that plaintiff has no interest in the cause of action asserted in his petition, by reason of having transferred and assigned all of its right and interest to Mastinbrought by the said Mastin-Lonergan & CompaLonergan & Company, and that this action is ny, in the name of plaintiff." The reply was a general denial of the new matter. There was a trial before the court and a jury which resulted in a verdict in favor of the defendant. Plaintiff filing a motion for new trial in due time, the court sustained that motion, granting the new trial on the 15th ground of plaintiff's motion. Excepting to this action of the court, defendant has duly appealed. The first 12 grounds stated in the motion for new trial are the usual assignments. The 13th ground is founded on what are said to be improper and prejudicial remarks made by the court in passing on objections to a question, and the 14th ground is alleged er REYNOLDS, P. J., and ALLEN, J., concur. ror of the court in commenting on the condi AQUA CONTRACTING CO. v. UNITED (St. Louis Court of Appeals. Missouri. Argued Filed May 7, 1918.) NEW TRIAL 29-MISCONDUCT OF COUNSEL In an action for injuries to plaintiff's motor truck due to defendant's negligence, the court was within its judicial discretion in granting plaintiff's motion for new trial for misconduct of defendant's counsel in inquiring of a witness for plaintiff whether plaintiff carried collision insurance, although an objection was sustained to the question, the jury instructed to disregard it, and counsel reprimanded. tion and conduct of a witness. The 15th ground, which is the one assigned by the court for granting a new trial, is in substance that defendant's counsel was guilty of misconduct during the trial in inquiring of a witness for plaintiff as to whether plaintiff carried collision insurance. It is set out at length in this 15th ground that in other cases against the defendant, tried in other divisions of the court, defendant's counsel here, who was counsel in those cases, had asked whether plaintiff carried collision insurance and the court had ruled that the question was improper, and that in another of the cases the same counsel for defendant had told the jury that the plaintiff had collected insurance on the life of her husband, which remark was objected to and Appeal from St. Louis Circuit Court; Thos. ruled improper by the court and counsel repC. Hennings, Judge. "Not to be officially published." rimanded, and it is averred in this motion that counsel for defendant in the case at bar Action by the Aqua Contracting Company well knew that the question he asked as to against the United Railways Company of St. insurance was improper and knew that it Louis. From an order sustaining plaintiff's was prejudicial to ask before the jury a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-31 question indicating that plaintiff had carried collision insurance, and that the question was asked for the purpose of prejudicing the jury against plaintiff, and intentionally asked with the intention of prejudicing the jury against plaintiff. This motion for a new trial was verified by counsel for plaintiff. The point here involved arose during cross-examination of a witness for plaintiff by counsel for the defendant. After that witness had testified to the fact that he was the superintendent of the defendant company and that he had been so for about a year and a half, this occurred, the questions being by Mr. Sager, counsel for defendant: "Q. Do you know whether the Aqua Contracting Company has any interest in this litigation? A. I don't know, sir. "Q. Don't you know as a matter of fact that they carried insurance as against accidents of this character on this particular truck and on other trucks they operated? "Mr. Pirkey (counsel for plaintiff): I object to that question and ask that it be struck out and Mr. Sager be reprimanded and the jury instructed to disregard it. "The Court: Under the statutes of this state, the suit must be brought by the real party in interest. If this concern is not the real party in interest, why is it necessary to reprimand the attorney for the other side if he thinks it is not? "Mr. Pirkey: Because that is not the way to show it. The courts have held it is not the way to show it. There is a simple and easy way to show it. I have cases here to support that." After a conversation between counsel and court without the hearing of the jury and of the stenographer, the court said: "The objection is sustained," to which Mr. Sager said, "All right. I will withdraw the ques tion." "Mr. Pirkey: I ask that the jury be instructed to disregard the instruction (sic) and the court reprimand Mr. Sager for asking an improper question. "The Court: That objection to the question will be sustained. Gentlemen of the jury, you will disregard the question asked by Mr. Sager, for the reason it is not competent at any time for either party to an action to show that there has been either insurance carried or paid by or to the party to an action, and the defendant ought not to have asked that question unless he is prepared to show the account in this case had been assigned." "Mr. Pirkey: Note my exception to the court's-" "The Court: Wait a minute. What else shall I tell them? "Mr. Pirkey: Tell the jury it was improper to have asked that question. "The Court: And it was improper for Mr. Sager to have asked that question. "Q. Do you know whether or not this account has been assigned, this claim has been assigned to any company? A. No. "Q. Do you know whether or not the Aqua Contracting Company has any interest in this case? A. I reported the bill for repairs. "Q. You don't know whether they have any interest? A. No. "Q. You don't know whether they have employed Mr. Pirkey to handle this case? A. No." This was all the testimony in the case pertinent to this 15th ground assigned in the It does not appear that beyond the above questions there was any attempt or offer on the part of defendant, appellant here, to show an assignment of the claim, or to sustain the averment of the answer as to that matter. While it is true that the court not only sustained the objection to the question and instructed the jury to disregard it, and also reprimanded counsel for defendant for asking the question, the fact remains that when the matter was presented to the learned trial judge in the motion for new trial as a ground for sustaining that motion, he saw fit to sustain it. That judge, on his attention being recalled to the matter by the motion for a new trial, undoubtedly concluded that injecting this poison into the case by way of the question tending to show that there was insurance held by the plaintiff company, was prejudicial and had influenced the jury. He had remarked, when objection was first made to the question, in effect that the question might be proper if counsel expected to follow this up with other testimony showing that in point of fact an assignment of the claim had been made and that the plaintiff was not the real party in interest. But no such offer or attempt was afterwards made. While it is true that the court at the time sustained the objection to the question, instructed the jury to disregard it, and reprimanded counsel, it is also true that it was a question present with the learned trial court to determine whether, in spite of this, the virus had been extracted from the poison injected into the case by this question. The learned trial judge had before him not only the witnesses but the jury and was better able than we, as an appellate court, can possibly be, to determine whether the effect of this element so injected into the case by counsel for defendant was still present with the jury. We had occasion to consider the effect upon the jury of the action and manner of the trial court in his comment on the conduct of counsel and we there held that although the remark of the court was not such as would justify us, as an appellate court, to reverse, had the motion for new trial been overruled, we would not disturb the action of the trial court in sustaining the motion for a new trial on account of that action and remark. See Copeland v. American Central Insurance Co., 191 Mo. App. 435, 177 S. W. 820. We therefore hold that 'there was no error of the learned trial judge in sustaining the motion for new trial on the ground assigned. Learned counsel for appellant refer to the the reasons assigned in the motion for new well-settled proposition that if for any of trial, the verdict should have been set aside, the court will affirm the ruling of the trial judge in granting a new trial even if the ground upon which he grants it is not sus ground assigned by the trial court was not sustainable, there are other grounds shown upon which that action can be upheld. As we hold that the ground assigned by the trial court is sufficient, it is unnecessary to look for other grounds and we do not consider or pass upon them here one way or the other. Holding that the action of the trial court in sustaining the motion for a new trial is sufficient and that the court was within its judicial discretion in so ruling, its action in that respect is affirmed and the cause is remanded for further proceedings. ALLEN and BECKER, JJ., concur. AQUA CONTRACTING CO. v. UNITED RYS. CO. OF ST. LOUIS. (No. 15020.) (St. Louis Court of Appeals. Missouri. May 7, 1918. Rehearing Denied May 22, 1918.) 1. STREET RAILROADS 110(2)- HUMANITARIAN RULE-PLEADING. In an action for damages to plaintiff's automobile sprinkling truck due to collision with defendant's street car, plaintiff's petition setting up as grounds of negligence failure to ring the gong, the operation of the street car at a negligent speed, and the act of the motorman in negligently failing to keep a vigilant, watch ahead for vehicles, and in negligently failing to stop, or attempt to stop, in the shortest time and space possible under the circumstances with the means at his command consistent with the safety of the persons on the car when he knew of the danger to the truck, in violation of the vigilant watch ordinance of the city, properly raised question of the humanitarian rule. 2. STREET RAILROADS 118(15)-HUMANITARIAN RULE-INSTRUCTIONS. There being nothing to show that plaintiff's chauffeur drove on to defendant's street car tracks purposely, and wantonly exposed himself or the truck to danger, and obliviousness to peril being in no sense made an issue, it was unnecessary that plaintiff's instruction stating humanitarian rule should, to authorize a verdict for plaintiff, require a finding that plaintiff's chauffeur was "oblivious" to his peril. Appeal from St. Louis Circuit Court; Karl Kimmel, Judge. "Not to be officially published." Action by the Aqua Contracting Company against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed. T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent. BECKER, J. This appeal is prosecuted from a judgment for $481.46 rendered against defendant in an action for damages to plaintiff's motor truck, alleged to have resulted from defendant's negligence in causing a collision between the truck and one of defendant's street cars. Plaintiff's petition is predicated upon the following assignments of negligence: First, failure to sound the gong. Second, the op eration of said car at a "negligent and high rate of speed" in excess of 15 miles per hour the maximum rate prescribed by an ordinance of the city of St. Louis. Third, the act of the motorman in "negligently failing, for some time next prior to the time said truck was struck as aforesaid, to keep a vigilant watch ahead for vehicles on or moving towards said track on which said car was running, and in, as aforesaid, negligently failing to stop, or attempting to stop, said car in the shortest time and space possible under the circumstances with the means at his command consistent with the safety of the persons on said car when he knew, or by the exercise of ordinary care would have known, of the danger to said truck of being so struck as aforesaid by said car in time by the exercise of ordinary care to have, with the means at his command and consistent. with the safety of the persons on said car, stopped said car before it struck. said truck as aforesaid, or so checked the speed of said car as to have prevented it from striking said truck," in violation of the vigilant watch ordinance of the city of St. Louis. All the testimony adduced on behalf of the plaintiff tended to prove that on May 4, 1914, plaintiff's chauffeur was operating its automobile sprinkling truck along Kingshighway in the city of St. Louis. Kingshighway is an open, public street running north and south, and on it are double tracks on which the defendant operates its electric street cars. The truck in question was about 25 feet long, and with the tank thereon filled weighed about 10 tons. On the morning in question the chauffeur had filled the tank with water near Oleatha avenue, at a point close to defendant's tracks. When the tank was filled the chauffeur cranked his machine, then looked both north and south; to the north he had an unobstructed view for over 4 blocks. He neither saw nor heard a car. Thereupon he took his place in the driver's seat and started the truck. From his position at the steering wheel he could not look north. He immediately steered the truck toward the defendant's tracks, intending to cross them. While the truck was on the tracks defendant's car, approaching from the south at about 25 miles per hour, struck the truck. There was testimony that when the truck first got on the tracks, going at a speed of about 1 mile per hour, the street car was There was testimony that 300 feet away. the street car, under the circumstances as testified to in the case, and at the place in question, running 25 miles per hour, could have been stopped in 110 feet. A witness for plaintiff testified he was a passenger on the said car; that when the street car had gotten to a point within 200 feet of the truck, which at the time had its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |