Opinion
Opinion filed February 19, 1946.
1. — Street Railroads — Negligence — Humanitarian Rule. Where in an action for personal injuries sustained by plaintiff by reason of being struck by defendant's street car plaintiff's evidence tended to show that he, a pedestrian, attempted, at night, to cross a street on which the defendant maintained a single track, with the intention of boarding an approaching car at a regular stopping place, saw the car when he started to cross the street, at which time it was about 150 feet away approaching at the estimated speed of 10 or 12 miles an hour, and while crossing held up his hand to signal to the motorman, that he walked a little more than 20 feet, crossed the rails of the track and lacked only a step of clearing the path of the car when he was struck, that the street was well lighted and dry, and that the slightest reduction of the speed of the car would have saved him from injury, held, that plaintiff made a case for the jury under the humanitarian rule.
2. — Street Railroads — Negligence — Humanitarian Rule. Where plaintiff, a pedestrian, undertook to cross a street and defendant's street car track thereon and was struck by an approaching car, held, that plaintiff was in the zone of peril when it would have become apparent to the motorman, if in the exercise of ordinary care, that plaintiff was unaware of his peril and intended to cross the track.
3. — Evidence. Where plaintiff, a pedestrian, undertook to cross a street and defendant's street car track thereon and was struck by an approaching car, held, that his testimony as to the distance the car was away when he stepped into its path was a mere estimate, and, in view of the distance the car ran after it struck plaintiff, did not amount to a judicial admission and was not conclusive.
4. — Street Railroads — Negligence — Contributory Negligence. If a plaintiff who is struck and injured by a street car in the City of St. Louis is guilty of contributory negligence as a matter of law it is error to submit the case to the jury under the vigilant watch ordinance of that city, but if he is not guilty of contributory negligence as a matter of law such ordinance may properly be considered by the jury on the issue of his alleged contributory negligence.
5. — Street Railways — Negligence — Contributory Negligence. Where plaintiff, a pedestrian, attempted to cross a street in the City of St. Louis and defendant's street car track thereon, for the purpose of boarding an oncoming car at a regular stopping place, and signalled the motorman of the car to stop, he had the right to assume, in the absence of notice or knowledge to the contrary, that the motorman would exercise that degree of care and watchfulness required of him by the vigilant watch ordinance of said city, and likewise the right to assume that the motorman would slow down and stop the car in obedience to such signal.
6. — Trial — Negligence — Instructions. Where in an action for personal injuries sustained by plaintiff by reason of being struck by defendant's street car the court gave an instruction submitting the case under the humanitarian rule, which told the jury that if they found that plaintiff was in a position of imminent peril of being struck and injured by the car, that the motorman saw or by the exercise of ordinary care could have seen plaintiff in such position of imminent peril in time thereafter, by the exercise of ordinary care, with the means and appliances at hand, with reasonable safety to the car and its occupants, to have stopped the car or slackened the speed thereof, and that by so doing defendant could have avoided striking and injuring plaintiff the verdict must be for plaintiff, and that this was true even though the jury might find and believe from the evidence that "plaintiff was himself negligent in a manner contributing to place himself into the aforesaid position of imminent peril," held, that the instruction did not conflict with a sole cause instruction given at defendant's request.
7. — Trial — Negligence — Humanitarian Rule. An instruction submitting the case under the humanitarian rule need not require a finding that plaintiff was in inextricable peril.
8. — Trial — Instructions — Negligence. It was not prejudicial error to refuse an instruction to the effect that the jury must first consider the issue of negligence and in determining that issue must not consider the extent, if any, to which plaintiff was damaged by reason of his injuries; the giving of such an instruction being a matter resting largely in the discretion of the trial court.
Appeal from the Circuit Court of the City of St. Louis. — Hon. F.E. Williams, Judge.
AFFIRMED.
Mattingly, Berthold, Jones Richards for appellant.
(1) The trial court should have directed a verdict for the defendant. (2) The trial court committed reversible error in submitting case to the jury on the vigilant watch ordinance because plaintiff was guilty of contributory negligence as a matter of law and as against primary negligence of the defendant, contributory negligence of plaintiff is a complete defense. Farris v. Thompson, 168 S.W.2d 439, 443, 444; State ex rel. Kansas City Southern R. Co. v. Shain et al., 105 S.W.2d 915, 918; Dempsey v. Horton (Mo.), 84 S.W.2d 621, 625, 626; Poague v. Kurn et al. (Mo.), 140 S.W.2d 13, 16; Hill v. St. Louis Public Serv. Co. (Mo.), 64 S.W.2d 633, 636, 637; Borrson v. Mo. K. T.R. Co. (Mo.), 172 S.W.2d 826, 835, 846, 847, 848, 849; Ashby v. Illinois Terminal R. Co. (Mo. App.), 132 S.W.2d 1076, 1078; Young v. St. Louis Public Service Co. (Mo. App.), 57 S.W.2d 717, 720; Zlotnikoff v. Wells, 295 S.W. 129, 130, 131; Carton v. St. Louis-San Francisco Ry. Co. (Mo.), 102 S.W.2d 608, 612; State ex rel. Wells v. Haid et al., Judges (Mo.), 25 S.W.2d 92. (3) The evidence was insufficient to make a case for plaintiff under the humanitarian doctrine. State ex rel. Alsup v. Tatlow et al., Judge (Mo., banc), 144 S.W.2d 140, 141, 142; Gosney v. May Lumber Coal Co. et al. (Mo.), 179 S.W.2d 51, 52, 53, 54; Knorp v. Thompson (Mo. App.), 167 S.W.2d 105, 113, 114; Bresler v. Kansas City P.S. Co. (Mo. App.), 186 S.W.2d 524, 529; Neill v. Alton R.R. Co. (Mo. App.), 113 S.W.2d 1073; Farris v. Thompson, 168 S.W.2d 439, 444; Pentecost v. St. Louis Merchants' Bridge Term. R.R. Co. (Mo.), 66 S.W.2d 533; Robards v. Kansas City P.S. Co. (Mo. App.), 177 S.W.2d 709, 712, 713; Sullivan v. Atchison, T. S.F. Ry. Co. (Mo.), 297 S.W. 945, 949, 950; Hendrick v. Kurn (Mo.), 179 S.W.2d 717, 719, 721; Hutchison v. Thompson (Mo. App.), 167 S.W.2d 96, 103, 104. (4) The trial court committed reversible error in refusing to give defendant's requested instruction lettered "B." Mendenhall v. Neyer et al. (Mo.), 149 S.W.2d 366; Clark v. Reising (Mo.), 107 S.W.2d 33. (5) The giving of plaintiff's Instruction No. 2 was error because it conflicts with defendant's sole cause Instruction No. 7. The jury were not required to find that plaintiff was in inextricable peril. Smithers v. Barker, 111 S.W.2d 53; Robards v. Kansas City P.S. Co. (Mo. App.), 177 S.W.2d 709, 712, 713; Bresler v. Kansas City P.S. Co., 186 S.W.2d 524, 529.
Everett Hullverson for respondent.
Orville Richardson of counsel.
The demurrer to the evidence could only be sustained if the facts in evidence and the legitimate inferences which might reasonably be drawn therefrom, when viewed in that light most favorable to the plaintiff and accepted as true, were so strongly against the plaintiff as to leave no room for reasonable minds to differ, compelling all reasonable men in the honest exercise of a fair, impartial judgment to draw the same conclusion against the plaintiff. Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950, 954; Courtney v. Ocean Accident Guarantee Corp., 346 Mo. 703, 142 S.W.2d 858, 860. (I) Plaintiff was not contributorily negligent as a matter of law and the court did not err in overruling the motion for a directed verdict and in submitting the case to the jury on a violation of the vigilant watch ordinance. (a) Cases involving railroad crossings in rural districts are not in point in pedestrian street car cases in city streets where ordinances require a vigilant watch by the motorman. Chervek v. St. Louis Public Service Co. (Mo. App.), 173 S.W.2d 599, 603. (b) Plaintiff was walking at a moderate gait, attentive to his safety and looking not only for the car approaching from his right but also for automobile traffic which might appear from his left. He walked directly toward a regular car stop to board the car in a lighted city intersection where he had a right to presume that the motorman was obeying the St. Louis vigilant watch ordinance and had seen him approaching and signalling. He heard no bell sounded by the motorman indicating his intention to pass through without stopping. He could not be convicted of contributory negligence because of a mere error in an estimate of speed and distance under the circumstances.
(1) His actions bespoke care, not negligence, and should have made his intention to cross the track clear to a vigilant motorman whom he had a right to expect to be at the controls. Kent v. Kiel (Mo. App.), 97 S.W.2d 885, 887; Williams v. East St. Louis Ry. Co., (Mo. App.), 100 S.W.2d 51, 54. (2) Mere estimates of speed and distance are inconclusive and not binding. State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406, 409; Johnson v. Dawidoff (Mo.), 177 S.W.2d 467, 471; Scott v. K.C. Public Service Co. (Mo. App.), 115 S.W.2d 518, 523. (3) Misjudgment of the speed of a street car approaching from a head-on angle of vision will not convict of contributory negligence as a matter of law. Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S.W. 14, 18; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762, 765; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 158; Murray v. St. Louis Transit Co., 108 Mo. App. 501, 83 S.W. 995, 997; Jordan v. St. Joseph Ry., L.H. P. Co. (Mo.), 38 S.W.2d 1042-44; Harting v. E. St. Louis Ry. Co. (Mo. App.), 81 S.W.2d 973, 975. (4) He had a right to rely upon the presumption that the motorman was obeying the vigilant watch ordinance and would see him and note his intention to board the street car. Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755, 762; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 158. (5) He had a right to presume that the motorman was obeying the vigilant watch ordinance and had seen his signal to stop and would stop at the regular car-stop directly toward which plaintiff was walking. Goggin v. Wells (Mo. App.), 249 S.W. 702, 703; Heigold v. United Rys. Co. of St. Louis, 308 Mo. 142, 271 S.W. 773, 775; Lackey v. Wells, 288 Mo. 120, 231 S.W. 956, 960; Sugarwater v. Fleming (banc), 316 Mo. 742, 293 S.W. 111, 114; Unterlachner v. Wells (Mo.), 278 S.W. 79, s.c., 317 Mo. 181, 296 S.W. 755. (6) The failure of the motorman to sound a warning entitled plaintiff to presume that he had been seen signalling for a stop at the regular car stop toward which plaintiff was moving. Willi v. United Rys. Co. of St. Louis (Mo.), 274 S.W. 24, 25, s.c., 205 Mo. App. 272, 224 S.W. 86; Hawkins v. Wells (Mo. App.), 297 S.W. 193, 195; Wilson v. Wells (Mo.), 13 S.W.2d 541, 544; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762, 764. (II) The court did not err in overruling the motion for a directed verdict and in submitting the case to the jury on a violation of the humanitarian doctrine. (a) Defendant's duty did not begin only when plaintiff took the last step onto the track. Homan v. Mo. Pac. R. Co., 334 Mo. 61, 64 S.W.2d 617, 624; Ellis v. Met. St. Ry. Co., 234 Mo. 657, 138 S.W. 27, 30; Kloeckener v. St. L.P.S. Co., 331, 396, 53 S.W.2d 1043, 1044. (b) The danger zone is of variable limits and is reached without fine distinctions. Where it commences is ordinarily a question of fact for the jury. Womack v. Mo. Pac. R. Co., 337 Mo. 1160, 88 S.W.2d 368, 372; Hoodenpyle v. Wells (Mo. App.), 10 S.W.2d 331, 333; Woods v. Kurn (Mo. App.), 183 S.W.2d 852, 855. (c) There is a well established distinction between awareness of the approach of a vehicle and obliviousness to peril of an intended but unknown movement of it. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 763; State ex rel. Sirkin Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 336; Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065, 1069. (d) Plaintiff was in peril from the moment he left the curb, and was oblivious to his peril. He was at least in imminent peril when a step or two from the track. He was almost across the track when struck and a checking of the speed of the car for the barest fraction of a second would have avoided his injury. Hoodenpyle v. Wells (Mo. App.), 10 S.W.2d 331, 333; Schimmelpfenning v. Wells (Mo.), 24 S.W.2d 154, 159; Crews v. K.C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 57-59; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335, 336; Goggin v. Wells (Mo. App.), 249 S.W. 702, 704. (III) There was no conflict between instruction No. 2 and defendant's sole cause instruction No. 7 and the court did not err in giving instruction No. 2. (a) The assignment of error is too general and presents nothing for review. Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006, 1009; Luechtefeld v. Marglous (Mo. App.), 151 S.W.2d 710, 715. (b) The evidence was not sufficient to support a sole cause submission. Crews v. K.C. Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 59. (c) The failure of defendant to produce the motorman as its witness alone authorized an inference unfavorable to defendant, which could be considered in passing on the sufficiency of plaintiff's case. Alexander v. St. Louis-San Francisco Ry. Co., 327 Mo. 1012, 38 S.W.2d 1023, 1028; Woods v. Kurn (Mo. App.), 183 S.W.2d 852, 856. (d) The "tail" of plaintiff's instruction No. 2 did not conflict with defendant's sole cause instruction No. 7. Ramel v. K.C. Public Service Co. (Mo. App.), 187 S.W.2d 492, 497. (e) It was not necessary to submit whether plaintiff was in inextricable peril or oblivious to his peril. Perkins v. Terminal R.R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 921. (IV) The court did not abuse its discretion or commit reversible error in refusing to give the defendant's Instruction B. (a) Such a lecture to the jury has been condemned. Unterlachner v. Wells (Mo.), 278 S.W. 79, 83; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832, 833-834; Ryan v. Burrow, 326 Mo. 896, 33 S.W.2d 928, 929. (b) The omission of the clause "except as an aid to you in determining whether or not defendant was negligent" authorized refusal of the instruction. Koebel v. Tieman Coal Material Co., 337 Mo. 561, 85 S.W.2d 519, 525; Clark v. Riesing, 341 Mo. 282, 107 S.W.2d 33, 36; Eisenbarth v. Powell Bros. Truck Lines, 235 Mo. App. 442, 125 S.W.2d 899, 902, writ quashed, 345 Mo. 915, 137 S.W.2d 461, 464. (c) The giving or refusal of a cautionary instruction is discretionary with the trial court and will not be reviewed on appeal unless clearly abused. Morris v. E.I. Du Pont de Nemours Co., 351 Mo. 479, 173 S.W.2d 39, 42; Britton v. Guardian Life Ins. Co. (Mo.), 177 S.W.2d 443, 446. (d) The subject-matter of the instruction was substantially covered in two other cautionary instructions given for defendant. Weaver v. Mobile Ohio R. Co. (banc), 343 Mo. 223, 120 S.W.2d 1105, 1112; DeMoulin v. Kroger Grocery Baking Co. (Mo.), 189 S.W.2d 562.
This is an action to recover damages for personal injuries sustained by plaintiff when struck by defendant's street car on Michigan Avenue, in the City of St. Louis, at a point about sixty feet south of Stein Street. Michigan Avenue runs north and south, and Stein Street runs east and west. Ivory Street runs northeast and southwest. It intersects Michigan Avenue on the west just south of Stein Street. The accident occurred east of the southwest corner of the intersection of Ivory Street with Michigan Avenue. Ivory Street does not extend beyond Michigan Avenue. The accident occurred on March 2, 1944, about ten-thirty at night.
Defendant maintains a single track on Michigan Avenue. It is used solely for northbound street cars. The distance from the west curb of Michigan Avenue to the west rail of the street car track is fifteen feet. The distance from the east rail of the track to the east curb of Michigan Avenue is 17½ feet. The distance between the rails of the track is five feet. There is a regular stopping place for northbound street cars just east of the southwest corner of the intersection of Ivory Street and Michigan Avenue. The stopping place is designated by a yellow band on a trolley pole. The pole is on the east side of Michigan Avenue.
Plaintiff at the time he was struck was walking east across Michigan Avenue from the southwest corner of the intersection of Ivory Street and Michigan Avenue, with the intention of boarding a northbound street car which was then approaching the regular stopping place. When he got just over the east rail of the track he was struck by the approaching street car, and thereby received the injuries for which he sues.
This action was commenced on March 14, 1944, and was tried, with a jury, in February, 1945. The trial resulted in a verdict in favor of plaintiff for $6500. Judgment was given accordingly, and defendant appeals.
On behalf of the plaintiff the case was submitted to the jury under the humanitarian rule and the vigilant watch ordinance of the city.
Errors are assigned by defendant for the overruling of its motion for a directed verdict and for submitting the case under the vigilant watch ordinance. To support the assignment defendant urges that the evidence shows plaintiff guilty of contributory negligence as a matter of law, that there was no evidence to warrant the submission of the case under the humanitarian rule, and that contributory negligence is a complete defense as against negligence under the vigilant watch ordinance.
On direct examination, plaintiff testified that as he stepped off the curb and started into the street he was looking for a street car and at the same time watching on the Stein Street side to his left; that the street car was about half a block away when he first saw it; that when he first saw the street car he was just stepping off the curb into Michigan Avenue going east; that as he walked across the street he held his hand out (illustrating) — put his hand up; that he kept on watching the car, and kept on watching the other side of the street; that there was other traffic there; that he was watching the other traffic as well as the street car, watching both sides; that when he first saw the street car about half a block away he estimated its speed at about ten to twelve miles an hour, something like that; that it looked like it was going slow; that he walked right across the street going east toward the stopping place; that he was across the rail before he was hit; that he walked fifteen feet to the west rail and five feet more before he was hit; that he walked a little over twenty feet before he was hit; that he kept watching the car and watching the traffic on the other side, too; that there was no bell sounded on the street car; that he was walking across the street in an ordinary walk; that he was familiar with the intersection and with the street car track and had ridden past there quite often before; that the street car struck him on his right side; that he did not remember anything more until he regained consciousness the next morning at the hospital.
On cross-examination, plaintiff further testified that he walked from the west curb straight across the street; that as he started off the curb he looked to his right toward the street car and kept on watching to his left, too; that as he was stepping off the curb the street car was about 150 feet to the south of the stopping place; that he thought the street car was at that time running about ten or twelve miles an hour, that that was what he judged it to be; that he did not look at the street car at all times; that he kept watching to the left, too; watching Stein Street for traffic because machines travel there and come south on Michigan Avenue; that he did not watch the street car steady but watched on the side, too; that he just could not tell how many feet the car was away the second time he looked that he could not tell exactly how many feet it was away then; that it was about as far away as from the witness stand to the back of the courtroom; that he was then about a little over half ways, indicating on plat a point about half way between the curb and the east rail and five feet west of the west rail; that he saw the car the third time just about the time he was hit; that when he saw the street car away about the distance from the witness stand to the back of the courtroom he kept walking, raising his hand; that he kept watching the car and at the same time watched on the side on account of machines; that after he saw the street car about the width of the courtroom away he looked to the left; that he kept walking while he was looking to the left; that he still kept watching the car; that he did not remember whether he looked back to the right or to the south to see where the street car was before he stepped over the rail; that he kept walking but did not watch the street car all the time; that he kept watching Stein Street; that he walked at a medium gait; that he figured the car was going to stop and thought he had time enough to get across; that he could not tell if the car was coming ten or twelve miles an hour when it hit him; that how fast the car was running as he stepped over the west rail was something he could not tell; that, when he stepped from a place of safety into the path of the car, he would say the car was about ten or twelve feet away.
James Keys, a police officer, testified that he was called to the scene of the accident, and when he got there the front end of the street car was about forty feet south of the south curb of Stein Street, and the man was under the front end of the car up to his chest; that he was lying on his back and was bleeding about the head; that he was unable to carry on a conversation; that he interviewed the operator of the street car; that the operator told him that he did not see the man until the car was almost in the act of striking him, but that he made every effort to avoid striking him; that he assisted in getting the man out from under the car; that the man was unable to talk, didn't carry on any conversation whatsoever; that in his opinion the man was unconscious; that the street lights were all burning and the lighting was good; that one would have had no difficulty in seeing a person a block away walking across the street; that the weather was nice and the streets were dry; that the regular stopping place for street cars is about sixty feet south of the south curb of Stein Street; that the front of the car was about twenty or twenty-five feet north of the stopping place.
Carl Jobst, a police officer, testified that when he arrived at the scene of the accident he saw the man lying under the front end of the street car; that the front end of the car was to the best of his knowledge about a car length to the north of the stopping place; that after the man was put in an ambulance he accompanied him to the hospital; that the man was in more or less of a coma; that he was moaning and was bleeding from the head.
Mrs. Marie Harr testified that when she arrived at the scene of the accident the man was under the street car; that he was unconscious; that the car was stopped about fifteen feet north of where it ordinarily stopped.
William Wells testified for plaintiff that at the place where the accident occurred, with the streets dry and the rails dry, and with reasonable safety to the passengers, the street car going at twelve to fifteen miles an hour could have been stopped in a distance within fifteen to twenty feet.
The vigilant watch ordinance, which plaintiff put in evidence, provides that the motorman or any other person in charge of a street car shall 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 said persons or vehicles, the car shall be stopped in the shortest time and space possible.
The motorman was not produced as a witness. Defendant offered no evidence at all.
There could hardly be a doubt that plaintiff made a case for the jury under the humanitarian rule. He started across the street when the street car was about 150 feet away. As he crossed the street toward the track and before he got in the path of the car he was by uplifted hand signaling the motorman of his intention to cross the track to board the car. It is true that it was apparent that he saw the car approaching because he looked at it and signaled the motorman to stop, but it was just as apparent that he intended to cross the track. He not only signaled his intention by uplifted hand, but he continued walking straight across looking to the north as well as to the south. When he was five feet from the west rail and saw the car as far away from him as from the witness stand to the back of the courtroom, he looked to the left and kept walking while looking to the left. The street was well lighted. The car was approaching a regular stopping place. Persons intending to board the car would naturally be expected to be at or about this place. Plaintiff lacked only a step of clearing the path of the car when he was struck. It is evident that the motorman, if exercising the care and watchfulness required of him under the humanitarian rule, would have become aware of plaintiff's intention to cross the track in time to have avoided striking him by stopping the car or checking its speed. The slightest checking of the speed of the car would have saved plaintiff from harm.
Defendant urges in argument that plaintiff's own testimony shows that he came into a position of peril for the first time when the car was only ten or twelve feet away from him. To this we cannot agree. Plaintiff was in the zone of peril when it would have become apparent to the motorman, if in the exercise of ordinary care, that plaintiff was unaware of his peril and intended to cross the track. [Kloeckener v. St. Louis Public Service Co., 331 Mo. 396, 53 S.W.2d 1043, l.c. 1044-1045; Ellis v. Metropolitan Street Ry. Co., 234 Mo. 657, 138 S.W. 23; Homan v. Missouri Pacific R. Co., 334 Mo. 61, 64 S.W.2d 617, l.c. 624; Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368, l.c. 371-372; Hoodenpyle v. Wells (Mo. App.), 10 S.W.2d 331, l.c. 332; State ex rel. Sirken Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50; Crane v. Sirken Needles Moving Co. (Mo. App.), 85 S.W.2d 911, l.c. 914; Bode v. Wells, 322 Mo. 386, 15 S.W.2d 335.]
Moreover, plaintiff's testimony as to the distance the car was away when he stepped into its path was a mere estimate, and, in view of the distance the car ran after it struck plaintiff, does not amount to a judicial admission, and is not conclusive. [State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406, l.c. 409; Johnson v. Dawidoff, 352 Mo. 343, 177 S.W.2d 467, l.c. 471; Long v. Mild, 347 Mo. 1002, 149 S.W.2d 853, l.c. 856; Scott v. Kansas City Public Service Co. (Mo. App.), 15 S.W.2d 518, l.c. 523; Haddow v. St. Louis Public Service Co. (Mo. App.), 38 S.W.2d 284, l.c. 286.]
Defendant further says that plaintiff's own testimony shows that he was half way from the curb to the west rail of the track when the street car was fifty feet to the south. His testimony does not so show. It shows that when he was five feet from the rail the car was so far away as from the witness stand to the back of the courtroom. The record does not show the distance thus indicated, but the jurymen and the trial judge were in a position to observe and judge the distance.
The motion for a directed verdict was properly denied.
However, if plaintiff was shown guilty of contributory negligence as a matter of law, as defendant contends, it was error to submit the case to the jury under the vigilant watch ordinance. But the ordinance was properly for the consideration of the jury on that issue. As plaintiff approached the track signaling the motorman to stop he had a right to assume, in the absence of notice or knowledge to the contrary, that the motorman would exercise that degree of care and watchfulness required of him by the ordinance. He likewise had a right to assume that the motorman would slow down and stop the car in obedience to his signal. [Unterlachner v. Wells, 317 Mo. 181, 296 S.W. 755, l.c. 762; Lackey v. United Railways Co., 288 Mo. 120, 231 S.W. 956, l.c. 961; Heigold v. United Railways Co., 308 Mo. 142, 271 S.W. 773, l.c. 776; Hawkins v. Wells (Mo. App.), 297 S.W. 193, l.c. 195; Wilson v. Wells (Mo.), 13 S.W.2d 541, l.c. 544; O'Donnell v. Wells 323 Mo. 1170, 21 S.W.2d 762, l.c. 764.]
From the fact that plaintiff was aware of the approach of the car it does not necessarily follow that he was aware, or ought to have been aware, of the peril to which it was subjecting him. Under the facts here that was a question for the jury.
All of the circumstances conspired to prevent plaintiff from discovering the peril that threatened him and to lead him to think that he could cross the track in safety. As he crossed from the curb to the track he was in the southbound traffic lane just south of the intersection of three streets. It was imperative that he watch for traffic that might come upon him through the intersection. He signaled his intention to cross the track. No bell was sounded to indicate that the car would not be stopped in obedience to the signal, or to warn him of his peril, and, as already said, he had a right to assume, in the absence of notice or knowledge to the contrary, that the motorman would not disregard either the vigilant watch ordinance or the signal to stop the car.
There was no error in the submission of the case under the vigilant watch ordinance.
Defendant assigns error with respect to plaintiff's instruction under the humanitarian rule, on the ground that the instruction conflicts with the defendant's sole cause instruction. The instruction thus criticized, eliminating some of its verbiage for the sake of brevity, is as follows:
"The Court instructs the jury that if you find and believe from the evidence that . . . plaintiff became and was in a position of imminent peril of being struck and injured by said street car and that defendant's motorman saw, or by the exercise of ordinary care could have seen plaintiff in said position of imminent peril in time thereafter, by the exercise of ordinary care, with the means and appliances at hand and with reasonable safety to said street car and its occupants, to have stopped said street car or slackened the speed thereof, and that by so doing defendant could have avoided striking and injuring the plaintiff, . . . then your verdict must be in favor of the plaintiff and against the defendant; and that is true even though you may find and believe from the evidence that plaintiff was himself negligent in a manner contributing to placing himself into the aforesaid position of imminent peril."
We can see nothing in the instruction authorizing a verdict for plaintiff if his negligence was the sole cause of his injury. Under the instruction the jury had to find that defendant's negligence directly contributed to plaintiff's injury. The concluding clause does not use the broad language found in the instruction under review in Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, l.c. 53. It is obvious that the instruction here under review would not be in conflict with a proper sole cause instruction. [Ramel v. Kansas City Public Service Co. (Mo. App.), 187 S.W.2d 492, l.c. 497, 498; Bowman v. Standard Oil Co., 350 Mo. 958, 169 S.W.2d 384, l.c. 387.]
Defendant complains of the instruction on the further ground that it does not require a finding that plaintiff was in inextricable peril. The assignment is clearly untenable. It was not essential that the instruction require such a finding. [Perkins v. Terminal R. Ass'n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, l.c. 921, 922.]
Defendant assigns error for the refusal of its instruction B, which reads as follows:
"The Court instructs the jury that, in deliberating upon this case, it is your duty to decide, first, whether or not under all the facts and circumstances in evidence, there is or is not any negligence on the part of the defendant, its operator and agent, as submitted and defined by the other instructions. Until this question of negligence has been determined by you, you have no right to consider the amount, if any, that plaintiff has been damaged.
"If the plaintiff is not entitled to recover damages, that is, if plaintiff has not shown by the preponderance or greater weight of the credible evidence upon the question of negligence that he should recover at your hands, then in your deliberation you should not and must not consider to what extent, if any, plaintiff has been damaged by reason of his injuries, if any, sustained as a result of being hit by said street car.
"Neither passion, prejudice nor sympathy should influence you in any manner in deciding this case, you should in arriving at your verdict be governed only by all the evidence and the instructions of the Court."
The giving of a similar instruction was held not reversibly erroneous in Mendenhall v. Neyer, 347 Mo. 881, 149 S.W.2d 366. It was held, however, that the giving of such an instruction rests largely in the discretion of the trial court. We do not find in the record here any grounds, and none has been suggested by counsel, to convict the trial court of an abuse of discretion in refusing the instruction.
The Commissioner recommends that the judgment of the circuit court be affirmed.
The foregoing opinion of SUTTON, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Hughes, P.J., and McCullen and Anderson, JJ., concur.