Johnson v. Springfield Traction Co.

*183 OPINION.

STURGIS, J.

The defendant asked a demurrer to the evidence but the above statement of the salient facts of the case will leave no doubt that the trial court correctly overruled the same.

The principal errors assigned here relate to the giving and refusal of instructions. The court gave five instructions for plaintiff, one of which defining ordinary care and negligence is not criticised, and gave eight instructions for defendant, as asked, and one other slighly modified; enough, we think, to abundantly and redundantly present all the. issues in the case. Nevertheless, defendant complains and assigns error on the refusal of each and all of fourteen other instructions. We are not advised whether the trial court exercised its right to refuse some or all of those so refused on the ground of their multiplicity on the theory that too many instructions tend to confuse rather than enlighten the jury on the issues. [Sidway v. Land Company, 163 Mo. 342, 356 , 63 S. W. 705 ; Norton v. Railway, 40 Mo. App. 642 ; Crawshaw v. Summer, 56 Mo. 517 ; Coe v. Griggs, 76 Mo. 619 .] We will not so treat the case as we are aware that the courts, by justifying at times the refusal of instructions upon the ground of their not being so accurately worded or drawn as to present a strictly correct statement of the law as applied to the particular facts of that case, make necessary the practice which they condemn. We do hold, however, that courts should not give too many instructions in any case, as they tend to confuse rather than enlighten the jury, and that, having given an instruction which fairly presents an issue in such manner that the ordinary juror will understand the same, then further instructions differently worded but covering the same point or making nice legal distinctions are properly refused. What we have here said is not a mere general observation *184 but is directly applicable to this case and disposes of numerous alleged errors in the refusal of instructions.

To set out all of the instructions given and refused and mention each and all of the very many objections urged against them would extend this opinion beyond reasonable limits. We will, therefore, only mention such as seem to be specially relied on or which’ on first thought would seem to have some merit. The first instruction given told the jury that:- “The court instructs the jury that it is the duty of a motorman operating a street car in a public street to keep a strict watchout for persons or vehicles in the pathway of the car, or so near the pathway of the car that they are likely to get in the pathway of the car; and a failure to do so is negligence.” Then, after numerating certain facts to be found as to the track and method of traveling and condition of the wagon and safe thereon, proceeds: “ . . . and that defendant’s motorman caused and suffered said car to collide with plaintiff’s wagon, and thereby injured plaintiff; and that defendant’s motorman saw, or by the exercise of ordinary care could have seen, the said wagon- moving along the defendant’s said track, as aforesaid, in dangerous nearness thereto; and that thereafter said motorman, by sounding the gong of the car, or by stopping said car in the shortest time and space practicable, with the means and appliances at hand, could have prevented said car from colliding with said wagon and the said safe that it contained; and that said motorman negligently and carelessly failed so to do, then you will find the issues in favor of the plaintiff.”

The first criticism leveled against this instruction is that it is one purporting to cover the whole case and directing a verdict for plaintiff on the facts there stated and that it is erroneous because not mentioning the defense of contributory negligence. We have much doubt as to there being any contributory negligence in the case as applied to plaintiff, either in the *185 pleadings or evidence. The courts have again and again condemned this method of pleading contributory negligence by a mere general statement of a conclusion that if defendant was negligent, the plaintiff was also guilty of negligence contributing thereto and have held the same bad pleading and insufficient (absent some waiver) to raise any such issue. [Cain v. Wintersteen, 144 Mo. App. 1 , 128 S. W. 274 ; Wallower v. City of Webb City, 171 Mo. App. 214 , 156 S. W. 48 , and cases there -cited.] Considering the evidence on this point, this was a public street, no part óf which was set aside for the exclusive use of the defendant, and the mere use for driving thereon of the part of the street occupied by the car track was not negligence. The plaintiff was not driving or directing the management of the wagon; nor was her husband her agent in so doing. Any negligence on his part, though we do not hold there was any, as to where and how he was driving, is not to be imputed to her. His negligence was not hers. [Moon v. Transit Co., 237 Mo. 425, 435 , 141 S. W. 870 ; Munger v. City of Sedalia, 66 Mo. App. 629 ; Hedges v. City of Kansas, 18 Mo. App. 62 ; Stotler v. Railroad, 200 Mo. 107, 146 , 98 S. W. 509 ; Becke v. Railroad, 102 Mo. 544 , 13 S. W. 1053 ; Sluder v. Transit Co., 189 Mo. 107, 138 , 88 S. W. 648 .] Nor is there anything in this case to bring this plaintiff within the exceptions to the rule just stated on the ground that she concurred in, or gave express sanction to, any negligent act of the husband, or, knowing the danger, failed to protect herself. [Sluder v. Transit Co., 189 Mo. 107, 142 , 88 S. W. 648 .]

But, granting that there is evidence of contributory negligence sufficient to take that issue to the jury, yet, the court gave an instruction asked by the defendant pointing out all the acts of both plaintiff and her husband which it thought would constitute contributory negligence and winding up by telling the jury *186 that if they found such conduct contributed to the collision and injury to find for defendant. Instruction numbered 5, given for plaintiff, also submitted this same issue to the jury. The insistence here is that these “belated” instructions, though, properly submitting this issue, -do not cure the error of omitting this defense in instruction numbered 1. It is broadly ■asserted that any instruction which, by its terms and meaning, covers the whole case and on the facts therein stated directs a verdict for plaintiff is erroneous if it fails to include the defense interposed and such error is not cured by other instructions correctly submitting such defense. The decisions may be hard to reconcile on this proposition and the rule is probably too general to fit all cases either way. Such an instruction may or may not be error, depending on the peculiar facts of the particular case. To say, however, that such an instruction if standing alone is erroneous is one thing and that the error cannot be cured by another-proper instruction is quite another. All the „ ..cases cited by defendant do not sustain its broad con- ' tention, as it is plainly held in Austin v. Transit Co., 115 Mo. App. 146, 152 , 91 S. W. 450 , that while such an instruction is erroneous: “But where the omission is cured by other instructions plainly and intelligently submitting the omitted evidence to the jury and directing the result that should be reached if such evidence is found to be true, the error would be corrected. [Gordon v. Burris, 153 Mo. 223 , 54 S. W. 546 ; Perrette v. Kansas City, 162 Mo. 238 , 62 S. W. 448 ; Orscheln v. Scott, 79 Mo. App. 534 ; Lemser v. Mfg. Co., 70 Mo. App. 209 ; Larson v. Mining Co., 71 Mo. App. 512 .]” Such, also, is the ruling in Johnson v. Railway Co., 117 Mo. App. 308, 311 , 93 S. W. 866 ; Abbott v. Mining Co., 112 Mo. App. 550, 556 , 87 S. W. 110 . As applied to the particular point now at issue it has been frequently ruled that a defense like contributory negligence or assumption of risk which must be pleaded *187 ■and proved by defendant may properly be left to a separate instruction and an instruction like the one ■complained of omitting any reference to such defense is not erroneous. [Underwood v. Railroad, 125 Mo. App. 490 , 102 S. W. 1045 , and cases cited.] It is said in Meily v. Railroad, 215 Mo. 567 , 114 S. W. 1013 , that no case except that of Sullivan v. Railroad, 88 Mo. 169 , has ever so held and that it was overruled by Owens v. Railroad, 95 Mo. 169 , 8 S. W. 350 , and a number of ■other cases cited. We, therefore, rule .this point -against appellant and think our ruling will be found to be in accord with Deschner v. Railway Co., 200 Mo. 310, 333 , 98 S. W. 737 , and Tranbarger v. Railroad, 250 Mo. 46 , 156 S. W. 694 . We are, of course, now ■speaking of cases, of which this is one, where the instructions supplement each other and when read together make a harmonious whole and not of eases where an incorrect instruction is sought to be excused ■or cured on the ground that another given instruction covering the same point but contradictory is correct. In such cases they would not supplement and aid eac]i_ other, making a harmonious whole, but would be contradictory and destructive one of the other, and presumptively such would be error. Such is the reason underlying some of the cases relied on by appellant, as for instance, Stewart v. Andes, 110 Mo. App. 243, 248 , 84 S. W. 1134 .

The first part or “preamble” of this instruction numbered 1, above quoted, is also criticised as being a mere abstract principle of law too general to be a guide to the jury and affording the jury too much of a roving commission. It is certainly the common practice to preface an instruction in negligence cases with a general statement of the duty of the operator of machinery, etc., to those using it or likely to come in contact therewith and to follow the same, as was done in this case, with a specific application of the doctrine thus stated generally to the particular facts in issue. *188 We know of no case condemning such an instruction and a similar one received the approval of this court in Overby v. Mears Mining Co., 144 Mo. App. 363, 374 , 128 S. W. 813 .

It is also assigned as error that this preamble puts in force the vigilant watch doctrine without any city ordinance being in force to that effect. Such doctrine, however, is in force as part of the common law of the land without any city ordinance. [Sluder v. Transit Co., 189 Mo. 107, 136 , 88 S. W. 648 , and cases cited; McFern v. Gardner, 121 Mo. App. 1, 11 , 97 S. W. 972 ; Mertens v. Transit Co., 122 Mo. App. 304, 312 , 99 S. W. 512 .]

It is also' said that this instruction numbered 1 is erroneous in saying, “The court further instructs the jury that if they believe and find from the evidence . . . that the defendant’s motorman saw, or by the exercise of ordinary care could have seen, the said wagon moving along the defendant’s said track, as aforesaid,’ in dangerous nearness thereto, etc., “in that it assumes that the car in question was “in dangerous nearness thereto,” and that same should have been qualified by saying “if you so find” or some equivalent expression. We see no merit in this contention. Certainly any juror would understand that he was required to find as a prerequisite to plaintiff’s recovery not only that the motorman saw the wagon in a dangerous position but that it was in a dangerous position when he saw it. While instructions should be carefully drawn so as not to assume a controverted fact, yet the habit, due, possibly, to the technicality of- the courts in that respect, of inserting after every clause of an instruction such phrases as “if any,” and “if you so find,” is apt to cause more confusion than it clears up.

It is next complained that instructions numbered .1 and 2, given for plaintiff, are in conflict in that number 1 permits a recovery if the defendant could *189 have prevented the accident by either sounding the gong or stopping the car and failed so to do; while number 2 permits a recovery for the negligent failure to stop the car even if the gong .was being sounded. We cannot see why both propositions are not correct. If it was the duty of defendant to do both these things if thereby the injury could have been avoided, then the doing of one only would not excuse the failure to do the other when the doing of the other would have avoided the injury.

Another complaint is that the motorman in charge of the car, although seeing the wagon on the track or dangerously near thereto, had a right to presume that the plaintiff and her husband would leave the track on the approach of the car and that the motorman owed them no duty to stop the car or check its speed until it became apparent that the wagon would not or could not do so, and that the jury should have been so instructed. We fail, however, to find any such instruction among the numerous refused ones asked by the defendant. But it is said that plaintiff’s instructions should have told the jury when defendant’s duty to stop the car arose: As applied to street cars easily controlled and stopped and being operated on a much traveled street, the doctrine just stated has a very limited application. If it is meant that such cars may be run and kept running at such a rate of speed under such conditions in reliance on a wagon moving out of the danger zone until too late to avoid the injury by stopping the car, then we cannot give assent to it. We have shown that the vigilant watch doctrine is but declaratory of the common law and exists without any ordinance and that doctrine requires that the.motorman “on the first appearance of danger to such vehicle shall stop the car in the shortest time and space possible.” It is a question for the jury to determine when the first appearance of danger accrues under the facts of any particular case. When there *190 is an unobstructed view of a wagon, either on the track or so near thereto as to be in' the dang'er zone, so that the jury is warranted in finding that the motorman either saw or by due care could have seen, such wagon in the place of danger in abundant time to control or stop his car before colliding with it, then the time and place where his- duty in this regard arose is necessarily somewhere between the place of first vision and the collision. The first instruction predicates negligence on the failure to stop the car .after the motorman saw or with due care could have seen the wagon ‘ ‘ moving along the track in dangerous proximity thereto,” and the second one on such failure to stop or attempt to stop the car after so seeing the wagon “in the pathway of the car” and before the time of collision. These instructions conform to the amended instruction approved in Bunyan v. Railway Co., 127 Mo. 12, 15, 16 , 29 S. W. 842 , and do not conflict with Boyd v. Railway Co., 105 Mo. 371, 380 , or Hutchinson v. Railway Co., 88 Mo. App. 376 , relied on by appellant. [See Wise v. Transit Co., 198 Mo. 546, 558-9 , 95 S. W. 898 .] We rule this point also against the appellant.

We are also met with the novel suggestion that the court should not have submitted the case on the humane or last chance doctrine because plaintiff does not plead or admit her own negligence, and it is asserted that this doctrine rests only on conceded negli- • gence, citing Bectenwald v. Railway Co., 121 Mo. App. 595, 601 , 97 S. W. 557 . Aside from the fact that defendant submitted the same theory by its instruction numbered 6, and cannot now be heard to complain (Sepetowski v. Transit Co., 102 Mo. App. 110 , 76 S. W. 693 ), we do not think that it is either usual or necessary for the plaintiff to plead or admit his own negligence in pleading the facts invoking such doctrine. In those cases in which the humanitarian doctrine is an exception to and defeats the rule that contributory negligence is a complete defense, this doctrine arises *191 not because of, but in spite of, plaintiff’s negligence. [Hutchinson v. Railway Co., 88 Mo. App. 376 .] Negligence in such cases is more often found by the jury against plaintiff’s denial than by his admission, and the plaintiff is allowed to recover notwithstanding the finding against him of his contributory negligence. The more correct doctrine is that where the facts found call for the application of the humanitarian doctrine, the question of plaintiff’s negligence becomes of no importance one way or the other.

Nor can we convict the trial court of error in refusing the instruction asked that positive evidence, to-wit, the evidence of witnesses who say that they heard the gong sounded, is entitled to greater weight than negative evidence, to-wit, of those who' say that they were in a position to hear but did not hear any gong. This is a question to be weighed by the jury, who are the solé judge of the weight to be given the evidence of any witness. State ex rel. v. Railroad, 70 Mo. App. 634, 641 ; Milligan v. Railroad, 79 Mo. App. 393, 397 .

, Nor was it error to refuse to instruct the jury that in determining the amount of damages to take into consideration the age and expectancy of the plaintiff, as there was no proof of her expectancy at her age.

We have examined the numerous other assigned errors, inclusive of the instruction on the measure of' damages and the remarks of counsel to the jury during the argument, but find no reversible error therein. The judgment is, therefore, affirmed.

Robertson, P. J., concurs. Farrington, J., concurs.