Opinion
No. 43208.
March 9, 1953.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS.
N. Murry Edwards and Ninian M. Edwards, St. Louis, for plaintiff-appellant.
Mattingly, Boas Richards and Lloyd E. Boas, St. Louis, for defendant-respondent.
Action for $25,000 damages for personal injuries. Verdict and judgment for defendant and plaintiff has appealed. The sole question raised is whether giving instruction No. 2, offered by defendant, was prejudicial error.
Plaintiff, eight years old, was a passenger in her father's automobile westbound on traffic lanes each way. She was injured in a collision between the automobile and defendant's streetcar on the streetcar tracks, which ran north and south, at the Hodiamont Avenue intersection. Defendant does not contend that plaintiff failed to make a jury case so it is not necessary to detail the facts shown by the evidence. The operator of the streetcar did see the automobile approaching almost at Hodiamont, going about 20 miles per hour and said it went onto the track without diminishing speed. He said the streetcar was going about five miles per hour across the east half of Page, slowed down near the center, and then started to speed up a little. (Plaintiff's father said that when the streetcar slowed down near the center of Page he thought it was going to stop.) The operator did not make any effort to stop the streetcar until after he got across the center of Page. He said "the traffic westbound on Page was very heavy."
The case was submitted on violation of the Vigilant Watch Ordinance of the City of St. Louis, which is as follows: "The conductor, motorman, gripman, driver or any other person in charge of each car shall keep vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space as possible."
Instruction No. 2 was as follows: "The Court instructs the jury that if you find and believe from the evidence that the operator of the streetcar mentioned in the evidence did not fail to keep a vigilant watch for all vehicles and persons on the street moving toward or upon the defendant's northbound streetcar track, if you so find, then in that event you should find in favor of the defendant on the issues as set out in instruction numbered 1."
We must hold this instruction prejudicial error because it ignored the real issue to be determined by the jury, namely, whether the operator failed to act to stop the car on the first appearance of danger, as required by the ordinance. Instead it authorized a verdict for defendant without a determination of that issue. This issue was particularly important in this case because the operator testified that he saw the automobile approaching at a time when he did have the ability to stop the streetcar. Certainly keeping a vigilant watch without doing anything to stop does not comply with the ordinance under the circumstances of this case. The purpose of requiring a vigilant watch is so that the operator will be able to act promptly to stop and avoid inflicting injury by stopping. See State ex rel. Vogt v. Reynolds, 295 Mo. 375, 244 S.W. 929; Abernathy v. St. Louis Public Service Co., 362 Mo. 214, 240 S.W.2d 914. In short, the ordinance requires "watch and stop", not just "watch". It is error to ignore an essential issue and circumscribe the factual bases of plaintiff's recovery and especially so in an instruction stating defendant's duty and directing a verdict for defendant. See Phillips v. Vrooman, 361 Mo. 1098, 238 S.W. 355 and cases cited. Defendant argues that this instruction, was only a converse of plaintiff's instruction, but the trouble is it was an incomplete converse and not a converse at all of the really essential issue submitted.
The judgment is reversed and the cause remanded.
All concur.