Opinion
November 24, 1928.
1. NEGLIGENCE: Automobiles: Collision at Street Intersection: Sounding Horn: Instructions. An ordinance requiring drivers of motor vehicles when approaching a street crossing to sound their signals in such a way as to give warning to other vehicles of their approach having been pleaded and introduced in evidence, and three witnesses having testified that defendant's truck sounded no signal of any kind as it approached the intersection where a collision occurred between it and the limousine traveling on the cross street and in which plaintiff's intestate was a passenger, it was error to refuse an instruction requested by plaintiff telling the jury that if defendant failed to sound a signal or give any other warning of the approach of the truck before the collision, and if such failure was a direct cause thereof and of her injuries their verdict should be for plaintiff. Likewise it was error to give an instruction for defendant declaring that there was no evidence to sustain the charge that defendant failed to sound the horn or to give any warning of its approach, and withdrawing that issue from the jury. The refusal of the one instruction and the giving of the other was each error unless it can be said as a matter of law (a) that the limousine driver actually knew that the truck was approaching in time to have stopped his own car safely and in the exercise of due care and (b) that there was no causal connection between the failure to sound the truck horn and the ensuing collision.
2. ____: ____: ____: ____: Stare Decisis: Reconsideration. A precise point having been decided on a former appeal in the same case, the rule then announced became binding on the trial court at a retrial, where the issue was the same and the evidence substantially the same; and the rule then announced will be adhered to on a second appeal where it works no injustice and correctly stated the law as applicable to the facts.
3. ____: ____: ____: Carriers for Hire: Joint Tortfeasors. Where plaintiff's intestate was injured when the limousine in which she was a passenger collided at the street intersection with a motor truck, it is error to give an instruction, requested by the truck defendant, to the effect that if the limousine defendants, being carriers for hire, by the exercise of the highest degree of care and watchfulness in the management and control of the limousine, could have prevented the collision and failed to do so, then they were liable for all the injuries resulting to said passenger from such negligence. There being substantial evidence tending to show that the negligence of the driver of the truck in failing to sound the horn was one of the proximate causes of the collision, such an instruction in effect tells the jury that if the limousine defendants could have prevented the collusion and did not, they are solely liable notwithstanding the truck defendant's negligence. As between the plaintiff and the limousine defendants the instruction is a correct statement of abstract law, but one defendant cannot by such an instruction shoulder off his negligence onto another.
4. NEGLIGENCE: Joint Tortfeasors. A plaintiff may elect to sue any one or more of several concurrent or joint tortfeasors, and it is not the right of any one of such joint tortfeasors to cast the burden of liability upon his fellow-culprit alone.
Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 3091, p. 1110, n. 80; Section 3268, p. 1218, n. 13. Motor Vehicles, 42 C.J., Section 1049, p. 1241, n. 74. Negligence, 45 C.J., Section 476, p. 896, n. 6.
Appeal from Circuit Court of City of St. Louis — Hon. M. Hartmann, Judge.
REVERSED AND REMANDED.
C.J. Anderson and Earl M. Pirkey for appellant.
(1) There is substantial evidence in the case to the effect that the driver of the limousine did not and could not see respondent's truck until he had got to the building line because of an obstructing beer truck at the corner. The ordinance, and ordinary care as well, under these circumstances required the driver of respondent's truck to sound a warning before he got to the corner. The ordinance, in specific terms, requires a vehicle on approaching a corner, that is, before it gets to the corner, to sound a warning. There was direct testimony of a number of witnesses that no warning was given. This instruction tells the jury that there was no evidence to sustain the charge of negligence against respondent in failing to sound a horn. This ruling undertook to say that the testimony of these three witnesses was not evidence and it therefore discredited these witnesses. The instruction did not tell them that this testimony was to be disregarded but it told them that there was no evidence when in point of fact there was evidence. The plain meaning of this instruction is that the testimony of these witnesses was untruthful, and it is reversible error for an instruction to say that there is no evidence on a particular point when there is evidence on that point. Bussey v. Don, 259 S.W. 791. The instruction is also erroneous because when a cause has been tried the decision of the appellate court on the first trial is the law of the case on the second trial. Miller v. Gavin, 123 Mo. App. 333; Chapman v. Railroad, 146 Mo. 494. Under the same evidence, only less in amount, at the former trial the Supreme Court, en banc, held that the assignment of negligence of no warning was supported by the evidence and should be submitted to the jury. Bradley v. Becker, 246 S.W. 364. (2) Ordinance 1264 pleaded in the petition and introduced in evidence provides that the drivers of motor vehicles of all kinds when approaching a crossing shall sound their signals in such a way as to give warning to other vehicles and to pedestrians of their approach. Had respondent's driver given a warning of his approach so that the driver of the limousine would have had some reason to anticipate his presence onto Gravois Avenue, a heavily traveled street, the collision would have been avoided. The view of the driver of the limousine was obstructed, negligence in giving no warning was pleaded, the Supreme Court, en banc, held that such issue was in the case on the state of facts appearing in this record, yet the court excluded the evidence, and although some witnesses had testified to the fact of no warning the court said there was no evidence of the lack of warning. There is no antidote or cure for these errors; they have the double effect of excluding a part of the testimony and an issue on which the case rested, and a further prejudicial effect in telling the jury that the testimony of certain witnesses was no evidence at all. Mueller v. Holekamp, 260 S.W. 118; Bussey v. Don, 259 S.W. 791. (3) Plaintiff offered Instruction E, submitting to the jury the question of whether or not respondent's driver gave warning and if not whether it was a direct cause of the collision. This instruction was refused by the court. This ruling was made in defiance of the law as laid down by the Supreme Court, en banc, at a former trial and in the face of such testimony held in such decision to be proper and offered in this case. Bradley v. Becker, 246 S.W. 364; Mueller v. Holekamp, 260 S.W. 118. (4) Instruction 12, given at the instance of respondent, told the jury that if they found from the evidence that whatever injuries, if any, were sustained by plaintiff resulted directly and solely from the negligence of the limousine defendants, or either of them, then the plaintiff could not recover against the defendant Charles J. Becker. Plaintiff was a passenger in the limousine. This instruction therefore should have told the jury that the negligence of the driver of the limousine could not be imputed to the plaintiff and failing to do so was reversible error. Peppers v. Railway Co., 295 S.W. 760; Boland v. Railroad, 284 S.W. 141; Fisher v. Pullman Co., 212 Mo. App. 280. (5) Instruction 15, given at the instance of respondent, is misleading because it indicates to the jury that if the limousine defendants were negligent they were solely liable. The instruction is erroneous also because it is broader than the pleadings. It exonerates defendant Becker if the other defendants were guilty of any negligence at all. State ex rel. Central Coal Co. v. Ellison, 270 Mo. 653.
Kelley, Starke Hassett for respondent.
(1) The court properly refused plaintiff's Instruction E, which told the jury, and properly gave and read to the jury defendant's instruction numbered ten. Peterson v. United Rys. Co., 270 Mo. 67; Murray v. Transit Co., 176 Mo. 189; Hutchinson v. Mo. Pac. Ry. Co., 161 Mo. 246; Heintz v. Transit Co., 115 Mo. App. 671. (2) The verdict and judgment in favor of the defendant Becker are for the right party, and no reversible error was committed by the trial court in the giving or refusing of instructions which materially affected the merits of plaintiff's cause of action against the defendant Becker. The judgment should not be disturbed, because upon the whole record it is manifestly for the right party. R.S. 1919, sec. 1513; Loan Trust Co. v. Surety Co., 285 Mo. 652; Trainer v. Mining Co., 243 Mo. 359; Quinn v. Railway Co., 218 Mo. 545; Mockowik v. Railroad, 196 Mo. 550; Moore v. Lindell Ry. Co., 176 Mo. 528; Von DeVeld v. Judy, 143 Mo. 348. (3) No reversible error was committed by the trial court in the exclusion or admission of evidence which materially affected the merits of plaintiff's cause of action against the defendant Becker, and the judgment should not be disturbed, because upon the whole record it is manifestly for the right party. Von DeVeld v. Judy, 143 Mo. 368.
This is the second appeal in this case. The former is reported in 296 Mo. 548, 246 S.W. 561. The action is for $15,000 damages sustained by appellant's intestate, Mary Bradley, in an automobile collision at the intersection of Gravois Avenue and Chippewa Street in St. Louis. With members of her family she was riding to the funeral of a relative in an automobile provided and operated by the Mayer Undertaking Company and the Reliable Auto Livery Company — referred to in the record as the "limousine defendants" and hereinafter so designated. The automobile collided with a Ford motor truck owned and operated by the defendant-respondent Charles J. Becker, the intestate's injuries resulting.
She brought this suit against the three defendants named and on the second trial had a verdict against the limousine defendants for $2500, but the jury found for the respondent. Both she and the limousine defendants appealed. Thereafter Mary Bradley died and her appeal was revived in this court in the name of her administrator under Section 4231, Revised Statutes 1919. The limousine defendants failed to prosecute their appeal and have dropped out of the case. Appellant makes twenty-eight assignments of error in his brief. All complain of the giving or refusal of instructions, and the admission or exclusion of evidence. It will not be necessary to cover the whole field of controversy to dispose of the case.
Gravois Avenue runs from southwest to northeast — more east than north — and Chippewa Street almost due east and west. The former is a wide thoroughfare with double street-car tracks in the middle, and a considerable volume of rapid motor traffic, whereas the latter is a little-used, macadamized by-street. In the intersection area of the two streets the brick paving on Gravois Avenue is extended out to the property lines. At the southeast corner of the intersection is a brick building formerly used as a saloon, which stands out flush with the east line of Gravois Avenue but some twelve feet back from the south line of Chippewa Street. At the time of the accident a beer truck was standing alongside the east curb of Gravois Avenue in front of this building. The front of the beer truck projected north of the brick building three or four feet to within eight or nine feet of the south line of Chippewa Street, and to one coming from the south on Gravois Avenue tended to obstruct the first view northeasterly of Chippewa Street.
Early in the afternoon of a bright, clear day in November, 1918, the limousine in which the intestate rode was going north, or northeasterly, on Gravois Avenue, traveling within four to eight feet of the east curb. As it approached Chippewa Street and got within twenty-five to fifty feet of the intersection it was running at a speed of twelve to fifteen miles per hour, the driver, Bernard Hoppe, testified. At that point he turned a little to the left to pass the beer truck, sounded his horn and slowed down to eight or ten miles per hour, moving during the operation something near twenty feet. When he got even with the front of the beer truck he saw for the first time the Ford truck driven by respondent's employee, Max Schoenemann, approaching the intersection from the east, on Chippewa Street. It was traveling in the middle of Chippewa Street at a speed of twenty or twenty-five miles per hour, and was about fifteen feet back east of the edge of the paving — the east property line of Gravois Avenue. During the instant of time it took Hoppe to realize how fast the truck was going it had traveled probably twenty feet. He undertook to stop "right then." He says:
"I then swerved to my left and brought my car practically to a stop about the middle of the two — I put my foot on the brakes and threw my clutch out. Swerving toward the left would take me toward the center of Gravois. When the limousine stopped it was about in the center of the two streets. From the time I first saw the truck until the time of the collision, it never did anything, just kept on coming, never swerved to the right or the left, just kept going right on through, kept going right straight out into Gravois. The point of collision was right in the center of the two streets. The limousine was struck on the right front, on the side, between the door and the front wheel on the right side."
The front wheels and fenders of the Ford truck struck the limousine, and as a result of the collision the former was turned clear around and headed back toward the east, coming to a stop in Chippewa Street clear past the east line of Gravois Avenue.
Hoppe further said that from the time he first saw the respondent's Ford truck it continued in plain view all the time until the two cars collided, that his eyesight and faculties were good, and that both the service and emergency brakes on the limousine were in perfect working order. On cross-examination by respondent's counsel he stated that from the place by the standing beer truck where he had slowed down to eight or ten miles per hour and first saw the Ford truck, he ran about thirty-nine feet to the point of collision and that the limousine had then practically come to a stop. It moved about two feet after the collision. He further said the minimum distance in which the limousine could have been safely brought to a stop from a speed of eight or nine miles an hour was fifteen or twenty feet, and from a speed of ten miles per hour about twenty-two feet. Being asked why he ran thirty-nine feet if he could have stopped in twenty-two feet, he answered he was afraid to keep going straight ahead because he would have been struck by the Ford truck. He was then asked: "Now, isn't the reason that you didn't stop quicker was because you didn't want to burn the rubber up on the tires, isn't that the real reason that you didn't stop quicker?" and he answered "Yes, sir." He then admitted that in the former trial he might have said, "I didn't want to burn the rubber up, you know," and that there was no reason why he could not have stopped in twenty-two feet.
The intestate, Mary Bradley, testified she didn't see the Ford truck at all. Her daughter, Mrs. Sexton, saw the truck only an instant before the collision. John J. Bradley, a son of the intestate, substantially corroborated the evidence given by the limousine chauffeur, Hoppe, on the latter's direct examination, except that Bradley said the limousine travelled northward along Gravois Avenue at a speed of about twenty-five miles per hour (instead of twelve to fifteen miles as Hoppe testified) until it reached a point about five feet north of the saloon building. He first saw the respondent's Ford truck as the middle of the limousine was even with the front of the beer truck standing in front of the building. The Ford truck was just coming on to the pavement at the east side of Gravois Avenue. This witness estimated the distance from him to the Ford truck when he first saw it at about ninety feet and said it ran about that same distance thereafter to the point of collision in the center of the intersection. But this seems very inaccurate in view of the testimony of respondent's witness Schmitz, a civil engineer, that the distance from the point where the Ford truck crossed the east line of Gravois Avenue to the center of the intersection is only sixty-eight or sixty-nine feet; and to the point marked on the plat in the record as showing where the automobiles collided, the distance scales only thirty-five feet. It is possible the witness meant the total distance traveled by the Ford truck from the time he first saw it until it came to a stop after the collision was ninety feet.
The driver of the respondent's truck, Max Schoenemann, testified that as he drove west in Chippewa Street on to the pavement of Gravois Avenue, he was going only about six miles an hour. He looked both ways and saw nothing coming. Then his testimony continues:
"There was a beer truck standing at the corner and I could see from a angle and I — as I kept on going I was on the pavement and I looked again and I saw a big limousine coming along at a pretty rapid speed; he didn't look like he was going to stop or slow down, so I put on my brakes. As I put on my brakes, the street being wet my brakes locked and I skidded a few feet, and he just came along and hit me on the front wheel and the fenders, put a dent in the left side of my radiator, and turned me completely around facing east." (In an additional abstract filed by the respondent it is shown this witness testified the limousine was going twenty miles per hour at the time of the collision.)
At the time of the collision there was in force in St. Louis an ordinance known as Ordinance No. 3013, Section 1277 of which provided that drivers of motor vehicles when approaching a crossing should sound their signals in such way as to give warning to other vehicles of their approach. This ordinance was pleaded by the plaintiff and introduced in evidence. Three witnesses had testified the Ford truck sounded no signal of any kind. During the cross-examination of this witness, Shoenemann, he was asked whether he sounded his horn at the intersection. He replied: "Well, my horn was not working so I raced my motor. My horn was not working at all. I just made a noise and raced my motor to make a noise." At this point Mr. Kelley, counsel for respondent, interrupted: "You didn't need to sound your horn under the law, saw him back fifteen feet from the pavement," by which he meant, as he later explained, that the limousine defendants' witness Hoppe had previously testified he saw the truck when it was fifteen feet east of the east line of Gravois Avenue and thereby became advised of the approach thereof in time to stop his own limousine notwithstanding the failure of the truck driver to blow the horn. In other words, according to respondent's contention there was no causal connection between the failure to sound the horn and the collision. A long dialogue between counsel followed, covering three pages of the printed record, during which counsel for appellants called to the attention of the court and opposing counsel the fact that that identical point had been determined adversely to their contention when the case was in the Supreme Court before, but the trial court nevertheless ruled the question out and struck the answer from the record.
Following that up, at the close of the evidence appellant's intestate requested the court to give an instruction, marked E, telling the jury if the respondent failed to sound a signal or to give any other warning of the approach of the truck before the collision, and if such failure was a direct cause thereof and of her injuries, their verdict should be for her. The court refused the instruction and instead gave one marked No. 10, requested by respondent, declaring there was no evidence to sustain the charge in the petition that the respondent negligently failed to sound the horn on his truck or to give any warning of its approach, and withdrawing that issue from the jury.
I. The ruling of the court on these Instructions E and 10 was wrong for two reasons. In the first place there was evidence, as heretofore stated, that the respondent's truck driver failed to sound his horn at the crossing. Some of the testimony was admitted in the earlier stages of the trial without Sounding objection and before any question had been raised Horn. against that class of testimony. In the second place, the precise point was decided when the case was here before (296 Mo. l.c. 557, 246 S.W. l.c. 564) and it was held that notwithstanding Hoppe's admissions there was substantial evidence tending to show a causal connection between the failure to sound the truck horn and the ensuing collision — that is to say, evidence indicating the limousine chauffeur could not stop after he saw the car, whereas the collision might have been avoided if the horn had been sounded. It is not contended by respondent that the evidence on the second trial was more favorable to him, or that the issues were different. On the contrary this court is asked only to "reconsider" the former ruling, which was in Court en Banc. No reason is apparent to us why the rule stare decisis should not be applied (Davidson v. St. L. S.F. Ry. Co., 301 Mo. 79, 85, 256 S.W. 169; Mangold v. Bacon, 237 Mo. 496, 511, 141 S.W. 650), or why it should not have been equally binding on the trial court.
We are, furthermore, of the opinion that the ruling made on the former appeal works no injustice under the facts in the record this time. Respondent's theory will not stand up unless it can be said as a matter of law that the limousine chauffeur actually knew the Ford truck was approaching in time to have stopped his own car safely and in the exercise of due care. In endeavoring to maintain that proposition respondent casts himself on the testimony of the chauffeur, Hoppe, that the limousine was thirty-nine feet from the point of collision when he first saw the truck, at which time he was moving eight to ten miles per hour, and that the minimum distance in which he could have stopped, going at that speed, was fifteen to twenty-two feet. But several things are to be remembered: first, that Hoppe was not appellants' witness, but an adversary witness for the limousine defendants; second, that parts of Hoppe's testimony indicate he did stop as quickly as appeared safe and possible in an emergency; and, third, that it is by no means conceded he was only going eight or ten miles an hour when he first saw the truck. The appellants' witness John J. Bradley said the limousine was going twenty-five miles per hour and the respondent's own witness Shoenemann said it was still going twenty miles per hour at the time of the collision, and that it looked as if it were not going to stop from the time he first saw it. We are not inclined to recede from the conclusion on this point reached in the former report of the case.
II. The appellant complains of the giving of seven other instructions for respondent and makes a number of assignments addressed to the exclusion of testimony by the court. Some of these criticisms are well founded, we think, but nearly all the errors were of a procedural nature and will disappear on a retrial. There are, however, two instructions which call for a word of comment. By respondent's Instruction 15 the court told the jury if the limousine defendants, being carriers for hire, by the exercise of the highest degree of care and watchfulness in the management and control of the limousine could have prevented the collision but negligently failed to do so, then they were liable for all injuries resulting to the plaintiff from such negligence. Instruction 16 is substantially the same in theory. As between the plaintiff and the limousine defendants the two instructions were correct statements of the abstract law, for a plaintiff may elect to sue any one or more of several concurrent or joint tort-feasors; but it does not lie in the mouth of either of the latter to say the onus of liability shall be cast on his fellow-culprit alone. [Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 569, 239 S.W. 827; 29 Cyc. 496.] As written, and coming from (or in behalf of) one of three defendants jointly sued, the instructions in effect were declarations that if the limousine defendants could have prevented the collision, they were solely liable notwithstanding respondent's negligence — at least they admit of that construction. This of course is not the law since, as we have twice held, there was substantial evidence tending to show respondent's negligence in failing to sound the horn was one of the proximate causes of the collision. The last chance doctrine, or its counterpart, cannot be invoked as between joint or concurrent tort-feasors. Such an application would subvert its object and purpose.
For the errors noted the cause is reversed and remanded.
This cause coming into Court en Banc from Division One, the foregoing divisional opinion of ELLISON, C., is adopted as the decision of the court. All of the judges concur.