Krehmeyer v. St. Louis Transit Co.

WOODSON, J.

I have adopted the statement of the case as made by Valliant, J., in his opinion delivered in Division One, which is as follows:

Plaintiff recovered a judgment for $15,000 against both the defendants as damages for personal injuries suffered by him in consequence of a wagon, in which he was riding as driver of the team of horses, being struck by a street car which was being operated at the time by the St. Louis Transit Company, on a street railway track belonging to the United Railways Company. Prom that judgment both defendants have appealed.

The petition charges that the defendants owned and operated the street railway and cars. The acts of negligence charged are: (1) Running the car at a speed in excess of eight miles an hour in violation of a city ordinance. (2) Operating the car at a rate of speed that was negligent under the circumstances. (3) Failing to' sound the gong. (4) Negligently failing to stop the car to avoid the collision after the motorman saw the position of peril in which plaintiff was.

The answer was a general denial and a plea of contributory negligence.

There is not much, if any, dispute about the facts. The plaintiff was driving a two-horse wagon loaded with empty boxes. He Was sitting on the driver’s seat in the wagon directly over the front wheels, and about four feet behind the horses. There were flanges on the sides of the wagon; the boxes were piled up high behind the driver and on each side of him, extending above his head about two feet, intercepting his view on either side. The length of the outfit from the rear of the wagon to front of the horses was about twenty-five feet.

Carr street runs east and west. There was a single track street railway in Carr street, on which the cars were operated from west to east. Going east a car would cross in succession Fifteenth, Fourteenth and Thirteenth streets. This accident occurred at the intersection of Thirteenth street. From Fourteenth to Thirteenth street the distance is 310.7 feet. Half way between Fourteenth and Thirteenth is an alley. Carr street is sixty feet wide, with a sidewalk twelve feet wide on each side, leaving a roadway from curb to curb thirty-six feet wide. The houses on the north side of the street came out to the building line.

Thirteenth street was at that time the only street between Fifteenth and Broadway (which by its number would be Fifth street) on which there was no railway track and it was a much traveled street. The plaintiff was coming from a point north of Carr street driving south on Thirteenth. When he got to the building line on the north side of Carr street he looked to the east and to the west and he saw a street car at Fourteenth street coming east, his horses were going at a walk and he testified that he thought he had time to cross the track in safety, therefore proceeded on his way. When the front part of his wagon was on the track he again saw the car, it was then at the alley in the middle of the block between Fourteenth and Thirteenth streets, about one hundred and fifty feet distant; after that, because the boxes were piled up on both sides of him, he could not see the car again, but he still thought, as he testified, that he would cross in safety. But before the wagon had cleared the track the car struck the rear part of the hind wheel with such force that the plaintiff was thrown to the street and some of the boxes fell on him. He was seriously injured.

The testimony tended to show that the car was going unusually fast, that it was going twice as fast as usual at that point; the rate was estimated at fifteen to eighteen miles an hour. The testimony was that it was going with such momentum that after striking the wagon it went a considerable distance into the next block.

The plaintiff called the defendant’s motorman as a witness, presumably to prove that it was a car of the transit company and that he was in the service of that company, but he was also asked about the equipment of the car and to give his understanding as to how the accident occurred. He testified that the car was well equipped, brake, sandbox, reverse and all in good order. He testified that when he first saw the wagon and team they were just coming into Carr street, and he *was about two car-lengths distant, that is, about sixty-four feet; he sounded the gong and then the plaintiff looked at him, the horses had got into the street and about ten or fifteen feet from the track. “I was sounding the gong; and I saw he was going to strike the car; I already had the brake partly set; I saw the ear was sliding and I reversed the power and shoved the lever down and then the car slid into the wagon.” He had already stated that the track was muddy and slippery and that there was a down grade. “Q. When you were two car-lengths away, I understand you to say you then realized there would be a collision, and then you set your brakes? A. Yes, sir. ... I could not have stopped the car quicker than I did. Q. How many feet more would have been required? A. It would have taken about three feet more.” The testimony of plaintiff’s other witnesséswas to the effect that the speed of the car was not reduced any from Fourteenth street to the point of-collision, and that after the collision it ran a considerable distance into the next block.

The city ordinance limiting the speed of the ear to eight miles an hour was read in evidence, also the Vigilant Watch Ordinance. A lease from the United Railways Company to the transit company of its tracks and equipments was read in evidence. This was the same lease that was in question in the case of Moorshead v. United Railways Co., 203 Mo. 121.

At the close of the plaintiff’s ease each of the defendants asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken. Defendants introduced no evidence.

In three of the instructions given for the plaintiff the jury were authorized to find the defendant guilty of negligence based on the speed of the car; in the first instruction it was said that if the car was going • faster than eight miles an hour it was going in violation of the city ordinance and it was, therefore, negligence on the part of the transit company; in the second and third it was said that if the car was going at a rate of speed which under the circumstances was dangerous the act was negligence. And in those three, instructions if the jury should find the defendant transit company guilty of negligence in the particulars there mentioned and that such negligence caused (or, as said in the first and third instructions, contributed to cause) the accident, and if the jury should find that the plaintiff was at the time exercising ordinary care to avoid injury to himself, the verdict should be for the plaintiff against the transit company.

The fourth instruction was given on the humanitarian doctrine. It was in effect that if the motorman saw the plaintiff in a condition of peril, likely to be struck by the car, in time by the exercise of ordinary care to have avoided the collision and failed to do so, the plaintiff was entitled to recover, notwithstanding the jury might find that the plaintiff was guilty of negligence in attempting to cross the track at the time and under the circumstances.

The instructions are long and it is unnecessary to copy them in full, because their substance is sufficiently stated above to' enable us to appreciate the points presented by appellant transit company in relation to them.

OPINION.

I. Counsel for appellant’s first insistence is, that by asking instruction numbered 4, submitting to the jury the so-called humanitarian doctrine, under the facts of this case, plaintiff thereby confessed that he was guilty of negligence, and that therefore he had no right to instructions numbered 1, 2 and 3 which authorized a verdict in his favor on a finding by the jury that he was not guilty of contributory negligence.

In our judgment that insistence was well taken. The evidence on the part of the respondent tended to show that he was injured in consequence of the negligence of the appellant, and that of the appellant tended to show he was injured in consequence of his contributory negligence.

It is evident, according to this record, that respondent was injured either with or without his concurring negligence; if with it, then he was not entitled to a recovery, except as hereinafter stated; but if without it, then 'he was entitled to a recovery. By instructions numbered 1, 2 and 3 the court told the jury that if they believed the respondent was injured in consequence of appellant’s negligence then they would find for him, and by instruction numbered 4 the court told the jury that notwithstanding his negligence placed him in a position of peril, yet he would be entitled to a recovery, and the jury should find for him, provided they further believed from the evidence that the appellant by the exercise of ordinary care, after discovering Ms perilous position, etc., could have averted the injury, etc.

Before the respondent could rec'over upon the former theory he must have been free from contributory negligence, but upon the latter the law excuses Ms negligence.

Those instructions when read together are clearly inconsistent with those of appellant submitting to the jury respondent’s contributory negligence, and it would ■therefore be impossible for the jury, to find for the appellant upon either theory of the case presented to them,-for the reason that under the evidence as disclosed by this record the jury could have found for the respondent under instructions numbered 1, 2 and 3, if he was free of negligence, and they could also have found for Mm under instrfifetion numbered 4, even though Ms injury was the result of his contributory negligence, and thereby absolutely have ignored the question of his contributory negligence as submitted to the jury by appellants’ instructions, which were the counterparts of instructions numbered 1, 2 and 3 given for respondent.

II. It is next contended by counsel for appellant that the circuit court erred in submitting the case to the jury, for the reason assigned, that the evidence conclusively shows that the respondent was guilty of negligence which directly contributed to his injury, which under the law bars Ms right to a recovery. We are unable to lend our assent to that contention. In our judgment, while there was testimony tending to prove respondent was guilty of contributory negligence, yet we are also of the opinion that the evidence was ample to carry the case to the jury, and justified the court in submitting the case to the triers of the facts.

III. Appellant also challenges the correctness of instructions numbered 1 and 3 given on behalf of respondent, for the reason hereinafter stated; and in order to clearly understand the objection lodged against these instructions it is all important that the issues joined by the pleadings should be borne in mind, -which I will here briefly state.

The petition charges the appellant with four acts of negligence, in consequence of which respondent alleges he was injured. The negligent acts charged are as follows:

First. That it ran the car which struck and injured him at a rate of speed in excess of eight miles an hour, in violation of an ordinance of the city of St. Louis.

Second. That it operated said car at such high rate of speed as, under the facts and circumstances of the case, amounted to negligence at common law.

Third. That it negligently failed to sound the gong on the car, or to give him any other warning of the car’s approach.

Fourth. That it negligently failed to stop the car in time to avert the injury after the motorman in charge thereof saw the perilous position in which respondent was placed.

The answer was a general denial, and a plea of contributory negligence; and the reply was a general denial of the new matter stated in the answer.

Those instructions read as follows:

“1. The court instructs the jury that if you believe and find from the evidence in this case that on the first day of November, 1902, defendant, the St. Louis Transit Company, was operating the east-bound street car mentioned in the evidence .from one point to another within the tíity of St. Louis and along Carr street, and that Carr street and Thirteenth, at said time, were intersecting, open, public streets within the city of St. Louis, each about sixty feet wide; and if the jury further believe and find from the evidence that on said date the plaintiff was driving a two-horse team and wagon southwardly along said Thirteenth street and across said Carr street, and that whilst doing so and whilst crossing the track of the said St. Louis Transit Company, the;, said wagon was struck by an east-bound car, and that as a direct'result thereof plaintiff was thrown out of said wagon and injured; and that the said car ran eastwardly on said Carr street between Fourteenth and Thirteenth streets, at a rate of speed in excess of eight miles an hour; then and in that case the running of said street car at such a rate of speed was in. violation of the ordinance read in evidence, and was negligence on the part of the said St. Louis Transit Company, and if the jury further believe and find from the evidence that such negligence directly contributed to cause said collision between the said street car mentioned in. the ■evidence and the wagon which plaintiff was driving and to cause the injury of plaintiff, and that plaintiff looked and listened for an approaching car as he came into Carr street at a point where he could see the car approaching, and did see it before driving on the track, and that in attempting to cross said track and in crossing it, and while crossing he was exercising ordinary care for his own safety, then and in that case the plaintiff is entitled to recover against defendant, the St. Louis Transit Company, and you will find your verdict for the plaintiff.

“3. The court instructs the jury that if you believe and' find from the evidence in this ease that on the first day of November, 1902, defendant, St. Louis Transit Company, was operating the east-bound car mentioned in evidence from one point to another within the city of St. Louis, along Carr ■ street, and that Carr street and Thirteenth street at said time were intersecting, open, public streets within the city of St. Louis, and that each was about sixty feet wide; and if the jury further believe from the evidence that on said day the plaintiff was driving a two-horse team and wagon southwardly across said Carr street and across the track of defendant, where said street is intersected by Thirteenth street, and while so driving plaintiff’s wagon was struck by the said east-bound, ear, and that as a direct result thereof plaintiff was thrown out of said wagon and was injured; and if you further find from the evidence that said street car was being operated by the motorman in charge thereof, at a rapid and dangerous rate of speed under the circumstances, and that the said motorman in so operating said car at said rate of speed was negligent, and that such negligence of the said motorman directly contributed to cause said collision and said injury to the plaintiff; and if you further believe from the evidence that the plaintiff looked and listened for an approaching car as he drove into Carr street at a point where he could see the car approaching and did see it before he drove on the track, and that in attempting to cross said track and in crossing it and while crossing it, plaintiff was exercising ordinary care to avoid injury to himself, then and in that ease the plaintiff is entitled to recover against the defendant, St. Louis Transit Company.”

Before beginning the discussion of the instructions mentioned, I wish to state, first, that counsel for appellant in neither brief nor oral argument denies the law to be, that, if the evidence in the case Had shown respondent had been injured in consequence of the concurring negligence of the appellant and that of some third person, or with some other independent concurring or succeeding cause, it would be liable in damages therefor.

Such a contention at this day, in the history of our jurisprudence, would be late if not novel. That rule is so old and well settled that it is justly called hornbook law, and, consequently, I have no complaint whatever to urge against it; but, upon the contrary, I indorse fully what has been said by this court and the text-writers upon that subject. But what I do object to is the application of that rule of law to the facts of this case, when there is not a scintilla of evidence contained in'this record which tends in the remotest degree to show that respondent’s injury was caused by the concurring negligence of appellant and that of some third person, or that his injury was the result of the successive acts of negligence of appellant and that of some third person,-.or that his injury was due to appellant’s negligence concurring with some outside and independent cause. There being no such evidence disclosed by the record in this case, this rule as contended for in the third paragraph of my able brother’s opinion, however correct it may be as an abstract proposition of law, has no application to the facts of this case; but had there been such evidence, then, clearly, this case would have fallen within that principle, which is aptly illustrated in the case of Bassett v. St. Joseph, 53 Mo. 290. In that ease the city had negligently permitted a deep excavation to remain unguarded, near the sidewalk upon which plaintiff was walking; and while passing along the walk in the vicinity of the excavation, a mule hitched near by kicked at her, and in attempting to avoid the kick the plaintiff sprang back and fell into the unguarded hole, and thereby received the injuries complained of in that ease. This court in that case held the city liable for damages for the injuries received by the plaintiff. That opinion was clearly right, for the reason that the evidence showed that the negligence of the city concurring with the kick of the mule caused her injury.

The same rule of law was properly applied by this court in the case of Brennan v. St. Louis, 92 Mo. 482. In that case the city had negligently permitted the sidewalk upon one of its streets to become out of repair, defective and in a dangerous condition for pedestrians passing over it. Upon the occasion in question the plaintiff was passing along the walk when her sister, who was with her, stumbled against her and accidently pushed her into said dangerous hole, and thereby broke her leg. The city attempted to escape liability upon the ground that its negligence was not the sole cause of the injury, but it was the result of the sister’s stumbling and pushing her into the hole. But the court denied the city’s contention, and said that the city was liable for the injury caused by its negligence, although the accidental stumbling of the sister contributed to plaintiff’s injury.

So in the case of Brash v. St. Louis, 161 Mo. 433, the city had negligently permitted a defective sewer to exist near plaintiff’s property up to May 27, 1896, when a very heavy rain fell, causing the sewer to burst and thereby flood plaintiff’s property. In that case the court correctly held that if the defects in the sewer and the unusual rainfall were concurring causes of the injury, then the city was'liable for the resulting injuries done to plaintiff’s property.

In the case of Straub v. St. Louis, 175 Mo. 413, the plaintiff was injured as a result of the combined negligence of a merchant in placing an obstruction in the street, upon which to display his goods, and the negligence of the city in permitting the obstruction to remain in the street. This court held that the negligence of both of them caused the injury and correctly held the city liable.

The case of Zeis v. Brewing Assn., 205 Mo. 638, which is relied upon as supporting the rule contended for by my learned associate in the case at bar, was written by myself, and while I indorse everything therein stated, yet paragraph four thereof, the one quoted from, was not concurred in by any of my associates, either in Division or in Banc, excepting Lamm, J. But independent of that fact, the evidence in that case showed the defendant had negligently furnished plaintiff with a weak and defective box in which he was required to- handle and deliver bottles of beer, and while so handling them the bottom of the box gave way, precipitating the bottles of beer, which were highly charged with gas, upon a granitoid pavement, and thereby caused them to' break and small particles of the flying glass struck and penetrated the eye-ball of the plaintiff. Upon that state of facts counsel for the defendant asked the following instructions: “3. Your verdict must be for the defendant unless you find from the evidence not only that the box in question was weak and insecure and that its weak and insecure condition was the direct cause of the plaintiff’s injury, but you must further find from the evidence that the defendant either kneyr the box to be in such weak and insecure condition or that there was some visible sign or indication upon the box itself showing it to be weak or insecure, and that such sign or indication had existed for such length of time prior to the injury that defendant, by the exercise of reasonable diligence, would have discovered the defect. Without such knowledge or notice, the defendant was not guilty of negligence.” While the opinion in that case does not state the facts as fully as might be desired, yet counsel for defendant in that case, both in oral and printed argument, contended that the trial court erred in not giving that instruction, for the reason, as contended by him, that if the weak and insecure condition of the box was not the direct cause of the injury, but that the flying glass was the direct cause, then the plaintiff was not entitled to a recovery. In discussing that contention of defendant’s counsel the opinion states: “The weak'condition of the box was but one of several facts taken together which caused the injury. The falling of the bottle, its breaking, the flying of glass, and its striking the eye were all contributing causes of the injury. If the instruction had been given in the form asked, then it could have been argued to the jury with great force and effect that it was the flying glass and not the weak condition of the box that caused the injury. While the weak condition of the box was the primary cause of the injury, yet it was by no means the sole and only cause thereof”. The law as just stated in the Zeis case is in strict accord with the rule stated by Judge Thompson in his excellent work on the law of Negligence, and by this court in the Bassett, Brennan, Brash and Straub cases, supra. But that is not this case, as will be hereinafter more fully explained;

As before stated, in each and every one of those cases, the pleadings, evidence and instructions showed that the plaintiff was injured as the result either of the concurring negligence of the defendant therein with that of some third person, or as the result of some independent cause to which defendant’s negligence contributed; but in this case the pleadings, evidence and instructions are silent upon that question, and left the jury in the dark to speculate and conjecture as to what the contributing cause was, if any, which contributed to appellant’s negligence which resulted in respondent’s injury. The instruction in the case at bar does not tell the jury that if the slippery condition of the tracks contributed to appellant’s negligence, and that the two caused the injury, then they would find for the respondent. That omission was clearly misleading and confusing, as will hereinafter be pointed out. In each and every one of those cases this court, in my judgment, correctly declared the law, because the instruction in each of those cases was based upon the evidence which tended to show that defendant’s negligence was one of the contributing causes of the injury; and if that was true, then under all of the authorities the defendant in each of those cases was liable.

With these observations we may pnt aside all of those cases as having no bearing or application whatever to this case, for the reason before stated that there is not a syllable of testimony to be found in this record which tends even remotely to show that respondent’s injury was caused by the concurring negligence of appellant with that of some third person, or through its negligence and that of some outside and independent cause. It is true, however, as the opinion herein states, that the evidence in this case shows-» that the car tracks were wet and slippery upon the-occasion- of the injury, which rendered it more difficult for the motorman who was in charge of the car to stop it in time to avert the injurybut it must be borne in mind that counsel for appellant does not contend that it is not liable to respondent because the slippery condition of the tracks contributed to its negligence, and for that reason it was not liable; but, upon the contrary, appellant has, from the time it filed its answer doym to this time, strenuously insisted that it has been guilty of no negligence in the case, and that whatever injuries respondent received in the collision with the car were due to his own negligence and not that of the company.

That there was evidence of negligence on the part of respondent which contributed directly to his injury cannot be disputed in the face of this record, which shows that the respondent placed the motorman on the-witness stand, and that he testified that when the car was within one or two ear-lengths -from the street crossing, the plaintiff suddenly -drove his team and wagon immediately in front of the car and so close thereto that it was impossible for him to stop the car in time to have avoided the injury.

Now, bearing in mind the issues'joined by the-pleadings and the evidence which was -introduced on each side which tended to support the petition and the ■ answer, and the total failure of the evidence to show.any other contributing canse to respondent’s injury except his own contributory negligence, then I respectfully submit that the court’s instruction to the jury which told them that if they “further believe and find from the evidence that such negligence [of appellant] directly contributed to cause said collision between the said street car mentioned in the evidence and the wagon which plaintiff was driving and to cause the injury to plaintiff” was diametrically opposed to and inconsistent with that part of the instruction which required the jury to find that the plaintiff exercised ordinary care for his own safety before they could find for him, which is in the following words: “and that plaintiff looked and listened for an approaching car as he came into Carr street at a point where he could see the car approaching, and did see it before- driving on the track, and that in attempting to cross said track and in crossing it, and while crossing he was exercising ordinary care for his own safety, then and in that case the plaintiff is entitled to recover”, etc., for the reason that under the evidence there could have been no other cause “which directly contributed to cause said collision” except the contributory negligence of the plaintiff himself. That being unquestionably true, then we have an instruction telling the jury in one clause that the plaintiff must exercise reasonable care for Ms own safety, and in the next practically telling them that if his own negligence (because there was no other shown) “directly contributed to cause said collision”, and injury, then they would find for the respondent. In my judgment those two clauses of the instruction are clearly in conflict with each other, and were especially misleading and confusing to the jury when they read them in connection with the other instructions given for appellant, submitting to the jury the question of respondent’s contributory negligence, ■for the reason that when the jury read said instructions given for appellant they would naturally read them in connection with those given for respondent, and they would there come face to face again with the conflict existing between the appellant’s instructions on contributory negligence and those of respondent on the question of exercising due care; and this latter conflict is just as sharp, misleading and confusing as is the conflict that exists between the two clauses of respondent’s instruction before pointed out.

In other words, if that is the law, then we have, as in this case, this state of affairs — one instruction given on behalf of defendant, telling the jury that if they believe from the evidence that plaintiff’s negligence contributed to his injury then he could not recover, and another given on behalf of plaintiff, telling the jury that if defendant’s negligence contributed to plaintiff’s injury then he could recover, and that, too, where the record is perfectly barren of all evidence of contributory negligence except that of plaintiff himself. Can you conceive of instructions being moré contradictory to each other and more misleading than are those given in this case? I must confess I cannot.

Under that condition of the instructions, the jury must have reached the conclusion that if appellant’s negligence contributed to respondent’s negligence, ancL that the two resulted in the latter’s injury, then the instructions authorized them to find for respondent, notwithstanding his own negligence. That is the plain meaning of the appellant’s and respondent’s instructions when read together.

Counsel for respondent seeing and recognizing this vice and the inconsistency existing in his own instruction and that existing between his and appellant’s instructions, attempts to justify and fortify that infirmity by citing the case of Zeis v. Brewing Assn., supra. But I submit that case is not in point and does not justify or cure the vice mentioned.

If it had been the intention of counsel for respondent to hold the appellant liable for the negligence of the appellant concurring with the slippery condition of the car tracks, then why did he not draw his instructions upon that theory, and thereby require the jury to find that fact, and not leave them in the dark to conjecture as to what the words “directly contributed to cause” the injury referred? With stronger reason the jury must have believed those words referred to the negligence of respondent than to the slippery condition of the tracks, for the reason that his negligence was interposed as a defense in the case, and there was testimony introduced tending to prove it, while the slippery condition of the tracks was not interposed as a defense, or referred to in the instructions.

In order to bring this case within the rule announced by this court in the case of Bassett v. St. Joseph, supra, and the Zeis ease, just mentioned, ‘Counsel for respondent dwelt at .some length in his .argument upon the fact that the slippery condition of the car tracks contributed to appellant’s negligence which resulted in respondent’s injury, and relies especially upon the Zeis case in support of his argument; and my learned brother who wrote the opinion herein has followed that argument and has fallen into the same error, of which I hope to be able to convince my associates before I conclude these remarks.

As before stated, it should be borne in mind that counsel for appellant has at no time in this case tried to escape liability for the injuries inflicted upon respondent because of the slippery condition of the car tracks as being one of the contributing causes of his injury, but introduced that evidence for the sole purpose of showing why the motorman did not stop the car as quickly as he ordinarily did in dry weather, thereby tending to disprove the charge contained in the petition to the effect that he negligently failed to stop the car in time to have avoided the injury after he saw the perilous position in which respondent had placed himself. Not only that, appellant did not ask an instruction or argue that question to the court, as was done by counsel in the Zeis case. In other .words, there was no pretense made by either party to this suit that any outside or contributing cause united with appellant’s negligence which resulted in respondent’s injuries, except his own acts of negligence; and when the court gave the instructions complained of, they authorized a recovery for respondent notwithstanding they may have believed he was guilty of contributory negligence.

If appellant had claimed or had asked the jury, as was done in the case of Zeis v. Brewing Assn., supra, that their verdict would be for defendant, if they believed from the evidence that the slippery condition of the track contributed to the former’s negligence in producing respondent’s injury, then the instructions in question would have been proper; but appellant made no such claim nor did it ask any such instruction, as did the defendant in the Zeis case. But the remarkable thing about this argument of counsel for respondent is, that he and not the appellant’s counsel, the only one under the la'w who has any authority to interpose a defense in a case, has set up this pre-> tended “slippery track” defense in this case as a straw man for the purpose of covering up the vice contained' in his instructions, and then turns upon the poor dummy and completely demolishes it; but while setting it up and knocking it down he was not arguing or touching upon any issue presented in this case from start to finish. That argument and contention was simply a thin, flimsy piece of gauze stretched over the errors contained in respondent’s said instructions, which at a casual observation would shield them from view, but when closely scrutinized they are easily seen through, as well as are the errors beyond and behind them.

In the oral argument of the Zeis ease, counsel for plaintiff stated that at the trial thereof in the circuit court, counsel for the defendant contended that the accidental hitting of the eye of plaintiff by the piece of flying glass from the broken bottle was the direct or proximate cause of respondent’s injury, and not the defective and dangerous condition of the box, and that defendant was not liable for it, for the reason that the striking of the eye by the glass was not the ordinary and natural result that would be expected to follow the falling and breaking of the bottles that would fall from a defective box; and that in order to present that theory of the case to the jury, defendant asked the trial court to give instruction number 3, which the court refused to do. That statement was not denied by counsel for defendant, but in harmony therewith counsel for defendant, both in his oral and and printed argument in this court, advanced the same argument in support of his contention that said instruction correctly declared the law applicable to the facts of that case. Judge Lajvdm and myself were of the opinion that said' argument was unsound, for the reasons therein stated, and held that said instruction so construed by counsel was not a correct statement of the law, and thought the court properly refused, it, but none of the other judges expressed an opinion upon that question.

While the instruction upon its face was a correct statement of the law, yet as construed by counsel for defendant it was clearly erroneous, in my judgment, and was just as objectionable in results as if that construction had been written in the instruction. A great jurist once wrote, in construing a contract, that if the parties thereto would tell him what they had done under the contract, then he would tell them that their actions bespoke the true meaning of the contract, even though it was not in strict accord with the letter thereof. That expression has been approved several times by this court.

Upon the same principle the Supreme Court of the United States in the case of Yick Wo v. Hopkins, Sheriff, 118 U. S. 356, held that an ordinance of a city or a statute of a State which was unobjectionable upon its face was nevertheless unconstitutional, null and void, if Jhe construction placed upon it by the State courts was in conflict with the Fourteenth Amendment of the Constitution of the United States.

It was upon this theory I based my opinion that said instruction numbered 3 asked in the Zeis case w;as erroneous, and that if given with the construction placed upon it by counsel for defendant he would have then argued that theory of the case to the jury with the same force and effect as if that theory had been written into the face of the instruction. So, if we read' that instruction in the light of the facts and circumstances surrounding the trial of that case, and the construction placed upon it by counsel for defendant, then it is clearly seen that the writer in discussing that instruction was 'Condemning the instruction as interpreted by counsel who asked it, and not for the purpose of showing that the flying glass was an independent concurring cause with defendant’s negligence which contributed to plaintiff’s injury, as Judge Valliant understands and states that case; but, upon the contrary, the whole argument there advanced was to show that the flying glass and its striking the eye was not an independent and the proximate cause of the plaintiff’s injury, as contended by counsel for defendant, but was to show that it was one of the direct and natural results of the negligent acts of defendant in furnishing the defective box and the falling of the bottles of beer therefrom upon the granitoid pavement.

Because of the misconception of that case, the majority opinion in this case seizes upon that ease as an authority sustaining the proposition that the slippery condition of the car tracks in this case was a concurring cause with defendant’s negligence which resulted in plaintiff’s injury, in the same sense that the kick of the mule was a contributing cause in the ■Bassett case; and by so doing, what is the result? Inevitably it places the appellant in this dilemma: If it should offer evidence of the slippery condition of the car tracks at the timó of the injury for the purpose of showing the motorman was not negligent in failing to stop the car after he saw the perilous position in which respondent had placed himself, and thereby escape the so-called humanitarian doctrine, which it had a perfect legal and moral right to do, then, under this instruction given on behalf of respondent, that evidence is seized upon by his counsel and argued to the jury that the slippery condition of the tracks was an act of God and a contributing cause to appellant’s negligence which resulted in respondent’s injury, and that, therefore, it is liable in damages for those injuries; while if appellant should take the other horn of the dilemma and decline to show the slippery condition of the tracks, then counsel for respondent would contend, just as he does, and correctly so if these instructions correctly state' the law, that the car could have been stopped by the exercise of ordinary care on the part of the motorman in time to have prevented the collision and injury. So under the instructions as given it was impossible for appellant to successfully defend this case, even though it be conceded that the respondent was guilty of contributory negligence, as his own testimony tended to show he was by driving so close in front of the approaching car, and which he must concede under the humanitarian doctrine, and also that it was impossible on account of that negligence and of the slippery condition of the tracks for the motorman to have stopped the car in time to have averted the injury, after the respondent placed himself in the place of danger.

Under the instructions given in this case the appellant had no more show to defeat this suit than if the court had given the jury a peremptory instruction to find for the respondent.

This brings us to the consideration of the case of Riska v. Railroad, 180 Mo. 168. In that case, as in the case at bar, the petition charged the appellant with violating the speed and gong ordinances of the city of St. Louis, and also pleaded the “humanitarian doctrine.” The answer was a general denial and a plea of contributory negligence. The evidence introduced by plaintiff tended to prove- the allegations. of the petition; and that of defendant tended to prove contributory negligence on the part of the plaintiff.' In that ease, as in this one, there was no evidence whatever tending to show that there was any other contributing cause to defendant’s negligence which resulted in plaintiff’s injury, except the contributory negligence of the plaintiff himself. Instruction numbered 2 given at plaintiff’s request, among other things, told the jury that “if the jury further find from the evidence that such failure to give such signal directly contributed to cause the injury and death of Mathias Riska; . . . and if the jury further find from the evidence in this case that said Mathias Riska exercised ordinary care to look and listen for a car on said track before going upon and whilst crossing said track, and exercised such care to avoid injury to himself,” then they would find for plaintiff. This summary of the pleadings, evidence and instructions in that case shoVs that it is on all-fours with this case, and are as much like each other as two black-eyed peas in a pod. That case upon its face is directly in point and supports the views expressed by Valliant, J., in his opinion in this case; but when critically examined it will be seen that no objection was made to said instruction by the defendant; and the opinion therein was written by Burgess, J., and' in discussing the case he never once mentioned or referred to that instruction except to copy it in the statement of facts of the case. While the judgment for plaintiff in that case was affirmed, and the court of necessity must have approved that instruction, yet it is not entitled to the same weight and consideration as it would have been had that able and learned judge’s attention been called to it and had it met with his specific approval. If my attention had been called to the Riska case before I wrote the opinion in the case of Hof v. Railroad, 213 Mo. 445, I would have called the court’s attention to it' on account of the admiration and respect I have for the learning and ability of the various members of Division No. 2 of this court, and would have requested that the case be transferred to Court in Banc, for the purpose of having the seeming conflict between the two cases reconciled.

In the Hof case, as in this, the evidence tended to show that both the plaintiff and defendant were guilty of negligence, and the instruction in that case was in all material respects the same as is the one in this case; but, as in this case, there was not a word of testimony which tended to show that there was any contributing cause to defendant’s negligence which caused the injury, except the plaintiff’s own negligence; and under that state of the record this court, after mature deliberation, held that the instruction there given for plaintiff was bad because it was indefinite and misleading.

In discussing the instruction in the Hof case, supra, on page 467, the court used this ' language: “Defendant complains of the first and second instructions given by the court on behalf of the plaintiff. It is claimed that they are erroneous for the reason that each of them authorizes the jury to find for plaintiff if they believe from the .evidence that the facts predicated therein ‘directly contributed to cause said collision,’ etc. I will consider only the first instruction for the reason that what is said as to the first will apply equally well as to the second. The words quoted from the instruction do not tell the jury that if they found the facts stated therein caused the collision and the consequent injury then they would find for the plaintiff, but told the- jury that if they found from the evidence ‘that such negligence of defendant’s servants to use ordinary care in' running said car upon said crossing directly contributed to cause said collision and injury to plaintiff’s person and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car before and whilst going upon said crossing, and such. ' care to avoid such collision and injuries, then the plaintiff is entitled to recover. ’ Under either of those instructions the jury might well have found, and doubtless did find, that plaintiff was not guilty of contributory negligence, but that he was injured by the concurring negligence of the' servants in charge of the car, and some unknown cause not stated in the petition or shown by the evidence. Clearly, that was error. The instruction should have been so drawn as to have told the jury that béfore they could find for plaintiff they must find that the negligence of the defendant caused and not merely contributed to the injury. Many things might be suggested which contributed to the injury, not stated in the petition or mentioned in the evidence; and there is nothing in the instruction which would prevent the jury from considering such outside things. In other words, there is nothing in the instruction which told the jury that before they could find for plaintiff they mast first find that its negligence caused the injury; nor does the instruction limit the jury to a consideration of the acts of negligence stated in the petition, hut leaves them to wander into the unknown fields of speculation to find out, if possible, what fact it was that must have existed that contributed to defendant’s negligence which caused the injury. And there is nothing in the instruction which tells the jury what the fact Was that existed which contributed to defendant’s negligence in causing the injury, nor when or how it contributed therewith. I am unable to conceive of an instruction which is more indefinite in its meaning or more calculated to mislead the jury than the one under consideration.” Who can say the jury did not find and believe that the concurring negligence of plaintiffs and defendant caused the injury?

My attention has not been called to a single authority which is in conflict with the law as announced in the Hof case, or with these observations, with the exception of the case of Riska v. Transit Co., supra; and, as before stated, the objection here made was neither made nor discussed in that case, and for that reason, in my judgment, it should not be considered as a binding authority.

The only other case relied upon for support of the majority opinion is the case of Newcomb v. Railroad, 169 Mo. 409. In that case the instruction told the jury that “before the plaintiff can recover in this case it must appear-to your satisfaction from the evidence that his injury was caused solely by the negligence of the defendant without any fault, neglect or want of ordinary care and prudence on his part.” The defendant’s contention in that case was that the plaintiff could not recover “if his fault, neglect or want of ordinary care was only slight or remote.” In discussing that instruction, the court, on page 422 of that Report, used this language: ‘ ‘ The vice claimed to be present in this instruction is that it limits the defendant’s liability to the sole negligence of the defendant, and that it precludes the plaintiff from recovering if he was guilty of ‘any fault, neglect or Want of ordinary care and prudence,’ it being contended that the defendant is liable even if its negligence was not the sole cause of the accident, while the plaintiff could recover if his fault, neglect or want of ordinary care was only slight and remote. A defendant may be liable even if the accident was not caused by his sole negligence. He is liable if his negligence concurred with that of another, or with the act of God or with an inanimate cause, and became a part of the direct and proximate cause, although not the sole cause.”

Prom this excerpt from that opinion it is seen that it supports the Hof case and the views here expressed, and does not, as is contended, support the majority opinion.

So, I repeat, that if there had been any evidence in this case which tended to show that any cause outside of respondent’s negligence contributed to appellant’ s carelessness which produced respondent’s injury, then under all of the authorities the instruction in question would have been proper; bnt as there was no evidence whatever in this case tending to show that there was any such contributing cause, then the instruction was contradictory and misleading and warranted the jury in finding for the plaintiff even though they believed that his negligence contributed to Ms injury, for the obvious reason that there was no evidence of any other contributing cause to which appellant’s negligence could have contributed.

"When we loot at this case as presented to the jury under the “humanitarian doctrine,” and under these contradictory, inconsistent and misleading instructions, it is clearly seen that appellant was as completely shorn of all defense as if the court had given a peremptory instruction to find for. plaintiff; and that defenseless attitude in which appellant appeared before the jury doubtless contributed largely to the size of the verdict in this case, which was for $15,000. Before a judgment of that magnitude should be permitted to stand the court should be fully satisfied that the jury reached its conclusions under proper instructions, clear and free from all error, and in harmony with the well-settled principles of law.

I am, therefore, satisfied that both instructions, numbered one and three, given for plaintiff, are erroneous, as expressly held in the case of Hof v. Railroad, supra.

IV. All of paragraphs one, two and three regard the appeal of the Transit Company; and we will now consider that of the United Railways Company.

All of the questions presented by this record as regards the liability of the latter company were presented to and disposed of by this court in the case of Moorshead v. United Railways Co., 203 Mo. 121. We see no good reason for changing our views regarding the law as declared in that case; and we must, therefore, hold that this company is not liable to. plaintiff, in this action; and that the court should have given the instruction asked by it in the nature of a demurer to the evidence.

The judgment Is, therefore, reversed as to the United Railways Company, and reversed and remanded as to the St. Louis Transit Company.

This cause having been transferred from Division One to Court in Banc, on the dissenting opinion of Woodson, J., after reargument and due consideration, said dissenting opinion is hereby adopted as the opinion of the Court in Banc, in which Burgess, Fox and Graves, JJ., concur; and the opinion of Val-ii ant, J., delivered herein in said Division, is adopted by him as his dissenting opinion, in which Gantt and Lamm, JJ., concur.